Preview
D.N.: FST-CV19-6044429-S : SUPERIOR COURT
TRISTIN B. BAYLIS : J.D. OF STAMFORD/NORWALK
V. : AT STAMFORD
CYCLING SPORTS GROUP, INC : JUNE 14, 2021
OBJECTION TO DEFENDANT’S
MOTION TO DISMISS
Plaintiffs object to the Fairfield County, Connecticut domiciled Defendant Cycling Sports
Group, Inc.’s motion to dismiss for forum non conveniens this product liability action relating to
the failure of a fork on a bicycle they sold which led to Plaintiff’s unwitnessed fall from his bike
in British Columbia, Canada. This case arises out of an incident occurring on October 1, 2018,
when Plaintiff Tristan Baylis was riding his Cannondale Bad Boy 9 bicycle, sold by Defendant
Cycling Sports Group, Inc. (CSG) on a smooth bicycle trail when the subject bicycle suddenly
and without warning broke apart catapulting the Plaintiff face first into the pavement. Plaintiff’s
Complaint ¶9. CSG is headquartered in Wilton Connecticut. More specifically, the fork of the
CSG bicycle broke at the steerer tube causing the front wheel to fall off the frame of the bicycle
causing Plaintiff to be catapulted forward with great force into the pavement wherein serious and
permanent injuries were sustained. Plaintiff’s Complaint ¶10. This fall was unwitnessed.
Seluga affidavit ¶25. The subject bicycle and fork are currently in Connecticut with the
Plaintiff’s expert, Kristopher Seluga, PE. Seluga affidavit ¶4.
The Plaintiffs commenced this action in 2019. In early 2020, the Defendant filed a
motion to dismiss, claiming forum non conveniens. Thereafter, the parties conducted
limited discovery related to the forum non conveniens issue.
ORAL ARGUMENT REQUESTED
TESTIMONY NOT REQUIRED
1
During the course of discovery CSG has revealed that two additional parties, the proposed
additional Defendants Kinesis Industry Co., Ltd. (“Kinesis) and Southern Cross International Co.
Ltd. a/k/a Southern Cross Bicycle (“SCB”) played a key role in manufacturing the subject fork
that failed and assembling the subject bicycle. Additionally, CSG has made clear that it has limited
information regarding the testing, design and specifications of this fork and bicycle and the forks
use in other bicycles and declared that these Proposed Additional Defendants would have more
information in that regard. Seluga affidavit ¶8; CSG’s April 19, 2021 Supplemental Objections
and Responses to Plaintiff’s Interrogatories, answer #19 (091-092) and deposition of David
Campbell p. 17, 26-27, 49 (110-113).
In response to disclosure regarding the supplier parties, Plaintiffs have moved to cite
them in as additional defendants, which the Court has scheduled to be heard concurrently with
the motion to dismiss. For purposes of this motion it is important to note that the statute of
limitations in British Columbia is two years, and thus appears to have run against the supplier
defendants. See https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation-
policy/legislation-updates/limitation-act. Likewise, it is highly doubtful British Columbia would
have personal jurisdiction over these Taiwanese companies that would be recognized in Taiwan, or
that a judgment against them there could be effectuated as conveniently in the United States.
As more fully explained in the discussion herein and the attached affidavit, deposition
transcript and other exhibits, there are a number of important witnesses who will need to testify
in this case, both employees and agents of CSG at its headquarters in Fairfield County,
Connecticut as well as former employees in Connecticut and elsewhere that CSG will have no
ability to produce if the case is transferred to Canada.
2
Under the facts of this case, it is clear that Defendant has not met its heavy burden to
impose the drastic, unusual and potentially unconstitutional remedy of dismissal for forum non
conveniens.
I. ARGUMENT.
A. Law regarding forum non coveniens
The key Connecticut Supreme Court cases dealing with a forum non conveniens claim in
this setting are Picketts v. Int'l Playtex, Inc., 215 Conn. 490, 576 A.2d 518 (1990) and Durkin v.
Intevac, Inc., 258 Conn. 454, 478, 782 A.2d 103, 119 (2001). Of the two Picketts is clearly the
most on point with this case, specifically including a product liability claim brought by British
Columbia Plaintiffs against a company headquartered in Fairfield County, Connecticut. In
Picketts our Supreme Court reversed as an abuse of discretion the trial courts dismissal for forum
non conveniens, and set forth some important ground rules.
Emphasis on the trial court's discretion does not, however, overshadow the central principle
of the forum non conveniens doctrine that unless the balance is strongly in favor of the
defendant, the plaintiff's choice of forum should rarely be disturbed ... Although it would be
inappropriate to invoke rigid rule to govern discretion ... it bears emphasis that invocation of
the doctrine of forum non conveniens is a drastic remedy ... which the trial court must
approach with caution and restraint. The trial court does not have unchecked discretion to
dismiss cases from a plaintiff's chosen forum simply because another forum, in the court's
view, may be superior to that chosen by the plaintiff ... Although a trial court applying the
doctrine of forum non conveniens must walk a delicate line to avoid implicitly sanctioning
forum-shopping by either litigant at the expense of the other ... it cannot exercise its
discretion in order to level the playing field between the parties. The plaintiff's choice of
forum, which may well have been chosen precisely because it provides the plaintiff with
certain procedural or substantive advantages, should be respected unless equity weighs
strongly in favor of the defendant a representation of the strong presumption in favor of the
plaintiff's chosen forum, before attempting to balance the private and public interest factors
relevant to a forum non conveniens motion.
Picketts, supra, 215 Conn. at 500–01 (Citations omitted; emphasis omitted; internal quotation
marks omitted.)
3
Durkin v. Intevac, Inc., 258 Conn. 454, 782 A.2d 103 (2001) was a highly unusual case
involving a mid air collision of two Australian military helicopters resulting in numerous injuries
and 18 deaths, which “constituted the largest peacetime military disaster in Australia since
1964.” Id. at 459. Thereafter, the Australian Army convened a Board of Inquiry which
conducted extensive investigations, interviewed 144 witnesses and thousands of pages of
documents. Id. The Board identified numerous causes of the collision unrelated to product
failure, including deficient leadership, training, operation and planning. Id. This Board
investigation and finding was pivotal to the Court’s analysis. Id. at 469 (“we also view the
board's unequivocal finding that the accident was caused by poor planning and implementation,
and not by defective products, as highlighting the importance of access to the board's report and
the evidence and statements of witnesses upon which that report was based.”).
Of additional critical significance to the Durkin decision was the inability to implead the
Australian government or the Australian Army to the action in Connecticut1. “In the present
case, it is undisputed that the defendants cannot implead the Australian government or
the Australian Army as third parties if this action remains in Connecticut. . . We, therefore,
conclude that the inability to implead third parties is a factor that, under the circumstances of this
case, weighs significantly in favor of dismissal.” Id. at 477-78. Durkin did not overrule or
modify Picketts, instead it quoted extensively from Picketts and did not change the baseline rules
that make such a dismissal highly unusual and unfavored. As repeated by the Court in Durkin
1
Our Supreme Court specifically noted that under Australian procedure these governmental
entities were not deemed immune and could be held liable if impleaded there. Durkin v. Intevac,
Inc., 258 Conn. 454, 478 n.19, 782 A.2d 103, 119 (2001)(“We note that it is undisputed that the
Australian government does not benefit from the doctrine of sovereign immunity and, thus, is
subject to being sued in Australia.”)
4
The [plaintiffs'] choice of forum, which may well have been chosen precisely because it
provides the plaintiff[s] with certain procedural or substantive advantages, should be
respected unless equity weighs strongly in favor of the defendant[s]. “[T]he overriding
inquiry in a forum non conveniens motion is not whether some other forum might be a good
one, or even a better one than the [plaintiffs'] chosen forum. The question to be answered is
whether [the plaintiffs'] chosen forum is itself inappropriate or unfair because of the various
private and public interest considerations involved.... Accordingly, the trial court, in
exercising its structured discretion, should place its thumb firmly on the [plaintiffs'] side of
the scale, as a representation of the strong presumption in favor of the [plaintiffs'] chosen
forum, before attempting to balance the private and public interest factors relevant to
a forum non conveniens motion.
Durkin v. Intevac, Inc., 258 Conn. 454, 464–65, 782 A.2d 103, 111 (2001)(quoting Picketts).
In addition to these Supreme Court cases, there is also a significant state constitutional
limitation to the doctrine of forum non conveniens, which our Appellate Court has expressly
recognized in reversing a dismissal under this exceptional doctrine. Conn. Const. art. I, § 10
“All courts shall be open, and every person, for an injury done to him in his person, property or
reputation, shall have remedy by due course of law, and right and justice administered without
sale, denial or delay.”
When a litigant properly presents his concerns before a state court, that court should not
lightly sweep those concerns under the putative judicial carpet of another state.
Connecticut's constitution specifically assures the citizens under its protection that the state's
courts will be open for the resolution of their disputes. Conn. Const., art. I, § 10. Thus,
Connecticut's courts should be even more reluctant than federal courts to dismiss claims that
are properly before them.
Sabino v. Ruffolo, 19 Conn. App. 402, 408, 562 A.2d 1134, 1136–37 (1989). “Therefore, except
where extraordinary circumstances exist, the doctrine should not be applied by state courts.” Id.
at 410. Sabino is still good law, and it should be noted that the state constitutional issue was
simply not raised in Durkin or Picketts, so the Supreme Court’s failure to address that issue in
5
those opinions has no significance2. Connecticut Courts have followed Sabino on this precise
issue.
“When a litigant properly presents his concerns before a state court, that court should not
lightly sweep those concerns under the putative judicial carpet of another state.
Connecticut's constitution specifically assures the citizens under its protection that the
state's courts will be open for the resolution of their disputes. Conn. Const., art. I, § 10.
Thus, Connecticut's courts should be even more reluctant than federal courts to dismiss
claims that are properly before them.” Sabino v. Ruffolo, 19 Conn.App. 402, 408, 562 A.2d
1134 (1989).
Henderson v. Ripka, No. HHDCV166072393S, 2017 WL 1901126, at *2 (Shapiro, J., Apr. 17,
2017).
Aetna claims, in the motion to dismiss, that Connecticut is an inconvenient forum, under the
doctrine of “forum non conveniens.” It claims that Hong Kong is a more convenient forum.
The court does not accept that proposition. Although witnesses may be in Hong Kong, there
is no reason to expect that depositions, if necessary, cannot be taken in Hong Kong. Many of
the decisions required to be arrived at involve the interpretation of written documents which
are easily available to both parties. . . It is the avowed public policy of this state that “all
courts shall be open, and every person, for an injury done to him in his person, property or
reputation, shall have remedy by due course of law, and right and justice, without sale,
denial or delay.” Sec. 10, Constitution of 1965.
Lo v. Aetna Int'l, Inc., No. CV 960565058S, 1997 WL 263715, at *1 (Sullivan, J., May 12,
1997). These principles have long been recognized. “An alien stands on the same footing
ordinarily as a nonresident. Our public policy, as reflected in our constitution, is that our courts
should be open to ‘every person.’” Santangelo v. Santangelo, 137 Conn. 404, 408, 78 A.2d 245,
247 (Conn. 1951).
2
Although the constitutional issue was not raised in these cases, the sentiment underlying it was
recognized by the Court. Durkin v. Intevac, Inc., 258 Conn. 454, 465, 782 A.2d 103, 112
(2001)(quoting Picketts)(“Connecticut continues to have a responsibility to those foreign
plaintiffs who properly invoke the jurisdiction of this forum especially in the somewhat unusual
situation in which it is the forum resident who seeks dismissal.”)
6
Casey v Truss 720 P2d 985 (Colo App 1986), held that the trial judge had erred in
dismissing the action on the ground of forum non conveniens. In doing so the court specifically
referenced its state constitutional open courts provision. Id. at 986 (“Application of this doctrine
is limited by Colo. Const. art. II, § 6, which requires all courts to be open to every person.”).
Notably, Casey was expressly cited to by our Appellate Court in Sabino, supra 19 Conn. App. at
406.
One additional case of importance is the recent thorough and extensive analysis by this
honorable Court earlier this year, denying a motion to dismiss claiming forum non conveniens.
Shipman Assocs., LLC v. White & Case, LLP, No. FSTCV206046192S, 2021 WL 838276
(Povodator, J., Feb. 5, 2021)(copy attached). The Court set forth in detail the required analysis.
our Supreme Court has stated that the following private interest factors must be considered
when determining whether to apply the doctrine of forum non conveniens: ‘(1) the relative
ease of access to sources of proof; (2) the availability of compulsory process for the
attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses;
(3) the possibility of viewing the accident scene if such viewing is appropriate to the action;
(4) the enforceability of a judgment; (5) the relative advantages and obstacles to fair trial;
and (6) all other practical problems that make trial of a case easy, expeditious and
inexpensive.’ Durkin v. Intevac, Inc., supra, 258 Conn. at 467, 782 A.2d 103. If the balance
of private interest factors is equal, the court must then consider public interest factors. Id., at
466, 782 A.2d 103. Those public interest factors as set forth in Gulf Oil Corp v. Gilbert,
supra, at 508-09, 67 S.Ct. 839, include the following considerations: “[A]dministrative
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. In cases which touch the affairs of many
persons, there is reason for holding the trial in their view and reach rather than in remote
parts of the country where they can learn of it by report only. There is a local interest in
having localized controversies decided at home. There is an appropriateness, too, in having
the trial of a diversity case 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.”
These private and public factors are bracketed by the need for a determination as to
“whether an adequate alternative forum exists that possesses jurisdiction over the whole
case” and assurance “that [the] plaintiffs can reinstate their [action] in the alternative forum
without undue inconvenience or prejudice.” Durkin v. Intevac, Inc., 258 Conn. 454, 466, 782
A.2d 103, 112 (2001).
7
Id. at *2. The Court further identified an inconsistency in the instructions of these cases.
Although the defendant is correct in stating that the appellate and trial court decisions
describe the situation in terms of equality (“if the balance of private interest factors is equal”
258 Conn. 466), that facially is inconsistent with the proposition that the scale starts off
tipped in favor of the plaintiff's choice of forum. (The “thumb on the scale” aspect of the
plaintiff's choice of forum is not generally identified as one of the private interest factors
being weighed.)
Id., at *12 n.10.
It is also important to keep in mind that the moving party bears the burden of proof,
production and persuasion on a motion for forum non conveniens. Durkin v. Intevac, Inc., 258
Conn. 454, 782 A.2d 103, 115 (2001) (in forum non conveniens analysis, defendants bear burden
and must go beyond mere assertion that evidence is in another forum). This burden must be
satisfied by clear evidence, not just bald assertions.
The defendants, however, bore the burden of persuasion that the chosen forum is
inconvenient to potential witnesses for the defense. When a dismissal is premised on the
convenience of witnesses, more than a mere allegation to that effect is required. Rather, the
defendants must establish, with specificity, inconvenience to witnesses that is sufficiently
prejudicial to justify dismissal. A party seeking to transfer a case ... for the convenience of
witnesses must identify the key witnesses to be called and must make a general statement of
what their testimony will cover. The burden is upon it to give the names and locations of
potential witnesses and the substance of their testimony. Sufficient information must be
included in the affidavits to establish that the named witnesses are key witnesses who need
to be called and that their testimony is material. The mere assertion that such evidence is
irretrievably located in Canada is, therefore, not adequate to tip the scales in the defendants'
favor on a motion to dismiss for forum non conveniens
Picketts, supra, 215 Conn. at 509–10.
The Plaintiffs have submitted herewith an affidavit from Plaintiff’s expert, Kristopher
Seluga, PE, and engineer who lives and works in Connecticut and is currently in possession of
the subject bicycle and fork, which explains in detail the importance of various persons and
documents located in Connecticut as well as important witnesses who are no longer employed by
CSG (who therefore would have no ability to produce them voluntarily even if such discovery
8
was available in British Columbia). Although this affidavit and the supporting documentation
attached and referenced therein are rather conclusive on this issue, it should be noted that
Plaintiff had no obligation to even provide such an affidavit.
That conclusion stands the applicable burden of proof on its head and totally removes from
the balancing process the preference to which the plaintiffs' choice of forum is entitled. The
defendants cannot meet their own evidentiary burden by pointing to alleged deficiencies in
affidavits that the plaintiff had no obligation to provide.
Picketts, supra, 215 Conn. at 511.
B. Applying the law regarding forum non coveniens to the facts of this case, it is clear
that Defendant has failed to meet its burden, as Connecticut is clearly the best
forum to fairly adjudicate the whole case.
The Defendant’s motion fails the first test for forum non conveniens, before we even get
to the private and public interest factors. “First, the court should determine whether an adequate
alternative forum exists that possesses jurisdiction over the whole case.” Durkin v. Intevac, Inc.,
258 Conn. 454, 466, 782 A.2d 103, 112 (2001). “These private and public factors are bracketed
by the need for a determination as to `whether an adequate alternative forum exists that possesses
jurisdiction over the whole case’ and assurance `that the plaintiffs can reinstate their action in the
alternative forum without undue inconvenience or prejudice.’” Shipman Assocs., LLC, supra,
2021 WL 838276, at *2 (quoting Durkin).
In the present case, there is a serious question as to whether British Columbia possesses
jurisdiction over the whole case. In particular, it is highly unlikely that British Columbia could
properly assert jurisdiction over the supplier parties the Plaintiff is currently seeking to implead
here. For starters, service of process is a serious challenge due to Taiwan’s unique legal status.
“Because Taiwan is not a signatory to the Hague Convention on service of process or any other
9
international agreement that governs service of process, there is no international agreement that
dictates how Plaintiffs can effectuate service on Defendant.” Noble Sec., Inc. v. Ingamar Co.,
No. 21-CV-1372 (MKB), 2021 WL 2012508, at *5 (E.D.N.Y. May 20, 2021)
Plaintiffs are comfortable we can properly assert such jurisdiction in Connecticut due to
the supplier defendants purposeful targeting of substantial business with a Connecticut company,
as more fully set forth in the jurisdictional allegations (¶¶43-59) of Plaintiff’s Proposed
Amended Complaint filed with their motion to cite in (#120.00). It is far less certain that British
Columbia could properly assert such jurisdiction, and even less likely if such an assertion would
later be recognized in Taiwan. Pursuant to Taiwan Civil Code Sec. 402, Taiwan will only
recognize a foreign judgment if its Courts find “(1) the foreign court had proper jurisdiction over
the subject matter of the suit, as judged by the laws of Taiwan; … (4) the defendant, if a private
or corporate citizen of Taiwan, was properly served; and (5) judgments of the courts
of Taiwan are enforceable on a reciprocal basis.” §23:29. Dispute resolution—Litigation, 6A
Eckstrom's Licensing: Joint Ventures § 23:29.
Kinesis, the subject fork manufacturer does substantial business throughout the United
States. https://en.wikipedia.org/wiki/Kinesis_Industry
(“Brands also manufactured by Kinesis include Commencal, Diamondback Bicycles, Felt
Bicycles, GT Bicycles, Haro, Ideal, Jamis, K2, Kona, Kross, Raleigh, Redline Bicycles, Santa
Cruz Bicycles, Schwinn, Storck, Sunn, Titus Cycles, Torker, and Trek — as well as the brands
marketed by the U.S. company Bikesdirect.com: Motobecane USA, Dawes USA, Cycles
Mercier, Windsor America.”). As a result, Plaintiff’s will comfortably be able to enforce any
judgment they get either directly in Connecticut or through a domestication and turnover order in
any state where any of the above referenced Brands are located. This would be the obligation of
10
every state to recognize under the Full Faith and Credit clause of the United States Constitution.
Conversely a judgment of dubious jurisdictional provenance (assuming the untimeliness issue
can somehow be overcome as well) in British Columbia would face much greater challenges in
enforcement both in Taiwan and the United States.
Thus, the Court need not even contend with the private and public factors set forth by our
Supreme Court as British Columbia is not an adequate forum for the whole case. However, it is
clear those also strongly favor Plaintiffs’ valid choice of forum, as analyzed below.
(1) the relative ease of access to sources of proof.
The focal point of any product liability action is the product itself, which is currently in
Connecticut.
The adequacy of a product's design and testing, and the information supplied to formulate
the basic package instructions and warnings provide the operative nucleus for a product
liability action. The creative or authoritative source of both design specifications and
product testing information is thus of material significance to the assignment of liability.
Picketts v. Int'l Playtex, Inc., 215 Conn. 490, 494 n.5, 576 A.2d 518, 521 (1990).
In Albright v. Combe Incorporated, 115 N.Y.S.3d 700, 702 (N.Y. App. Feb. 5, 2020), the
court recently reversed a dismissal for forum non conveniens filed by a resident manufacturer
regarding a suit in its home county, noting that “Just For Men’s design, manufacturing, labeling,
advertising, and executive decision-making all allegedly occurred in White Plains, where Combe
Incorporated has a principal place of business.” Therefore, the court held that suit was properly
maintained there, “despite the fact that evidence of damages would most often be found where
the plaintiff resides.”
As set forth in detail in the Seluga affidavit attached hereto, there are numerous
significant witnesses and likely relevant documents in Connecticut or accessible in Connecticut.
The Defendant’s argument seems focused on the likelihood that many of Plaintiff’s damages
11
witnesses are located in British Columbia. This is a rather misleading contention as the essence
of a defendant’s forum non conveniens claim must rest on a showing of significant hardship to
that defendant. “The defendants bear the burden of persuasion that the chosen forum is
inconvenient to potential witnesses for the defense.” Travelers Prop. Cas. Co. of Am. v. W.
Consol. Premium Properties, Inc., No. CV075012628, 2008 WL 725118, at *1 (Wagner, J., Feb.
21, 2008). A feigned claim of concern for possible inconvenience to Plaintiff’s witnesses is not
valid, as this honorable Court has recently found.
The fact that the plaintiff's witnesses may be from remote states is a misleading and
inherently dubious consideration. First, it is or should not be the defendant's concern if the
plaintiff chooses a forum that the defendant thinks may be less convenient to the plaintiff's
witnesses, especially to the extent that two of the three witnesses identified are
representatives/principals.
Shipman Assocs., LLC v. White & Case, LLP, No. FSTCV206046192S, 2021 WL 838276, at
*8–9 (Povodator, J., Feb. 5, 2021). The Court has also recently noted that electronic document
management, remote depositions and even remote trial testimony has significantly minimized
and potential hardship with regards to witness or document location. Id. at *12. Furthermore,
Plaintiffs expressly represent that should the case remain here we will be retaining a local doctor
to testify regarding Plaintiff’s medical claims who the Defendants will be able to depose and
cross examine at trial with no inconvenience.
This issue was dealt with in a similar scenario by the 3d Circuit in reversing a forum non
conveniens dismissal in a fairly similar situation in which the moving defendant said it would
make available witnesses and documents but the record showed much of this evidence was with
third parties not under the defendant’s control who would be highly unlikely to be compelled to
give discovery as a third party under British Columbia law. Lacey v. Cessna Aircraft Co., 932 F.
2d 170, 175 (3rd Cir. 1991).
12
In dismissing Lacey's action, the district court did not consider the impediments that Lacey
might face in gaining access to sources of proof in British Columbia, impediments that
potentially rob British Columbia of its practical value as a forum. In view of this error, as
well as other subsidiary points discussed below, we are unable to defer to the district court's
conclusion "that the public and private interests both preponderate strongly in favor of
dismissal." 736 F.Supp. at 669. Rather, we think that an order which dismisses a suit
on forum non conveniens grounds without taking into account a critical limitation on the
plaintiff's ability to prosecute his or her action in the alternative forum constitutes an abuse
of discretion.
Lacey, supra, 932 F. 2d at 175. As in Lacey, CSG’s claim that it will make available witnesses
and documents under its control rings hollow when the record reveals much of the key evidence
is with the supplier parties and many of the key witnesses no longer work for CSG.
(2) The Availability of Compulsory Process for the Attendance of Unwilling Witnesses, and
the Cost of Obtaining Attendance of Willing Witnesses.
This issue significantly favors Plaintiffs. As set forth in the Seluga affidavit, there are
numerous witnesses of likely significance that would be lost to Plaintiffs if the case was
transferred to Canada. These include Curt Davis, the Product Manager for the subject bicycle
and fork for CSG (see deposition of David Campbell at 12:6-12:20, 005). According to CSG, his
last known address was in Sandy Hook, Connecticut, although he no longer works for CSG at
this time (see deposition of David Campbell at 12:21-12:24, 005-006); Gilbert Kisamore who ran
the Cannondale Test Lab in the pertinent time period, and Chris Peck, who was the Vice
President of Engineering in the pertinent time period (see deposition of David Campbell at 30:5-
31:18, 007-008). Pursuant to Mr. Campbell’s testimony they no longer work for CSG. Seluga
Affidavit ¶¶19-20. There are also numerous other CSG employees who our expert believes
would likely have pertinent information Seluga Affidavit ¶¶21-22.
13
Notably, a number of these people live in Connecticut, and for those who don’t we can
still readily get a commission to take their deposition out of state. However, if the case is
transferred to British Columbia we will likely lose any reasonable ability to depose these
important witnesses. Our Supreme Court addressed this issue in some detail in a footnote in
Picketts, specifically recognizing the severe limitations of British Columbia procedure in
obtaining testimony from both corporate employees and former employees and other third parties
(such as the Proposed Additional Defendants here). Picketts v. Int'l Playtex, Inc., 215 Conn. 490,
507 n.14, 576 A.2d 518, 527 (1990). The Court noted how British Columbia allows a corporate
defendant to select a single representative rather than the Plaintiff selecting the employee they
want to examine. Id. The Court further noted that British Columbia does not have compulsory
process and a severe restriction on depositions of nonparty witnesses. “Finally, discovery
through non-party witnesses, such as former employees of International Playtex, Inc., is severely
restricted not only because of the lack of compulsory process but due to the inherent limitation
on the availability of pretrial depositions of nonparty witnesses.” Id.
The only witness in Canada Defendant has specifically identified is a person at a bike
shop that communicated with the Defendant about the subject incident. Campbell affidavit at
¶24. No information is given as to what important testimony they might have nor why it would
not be expected for them to voluntarily speak seeing as they had done so already and were in an
ongoing business relationship with the Defendant. The Defendant’s deposition made clear that
this person was working at a Cannondale authorized dealer and cooperated with them upon
request with no legal process needed. Deposition of David Campbell pp. 56-59 (114-117). Even
if one was to improperly assume this witness with unknown knowledge now is refusing to testify
voluntarily, CSG would be able to compel the same in Canada through the letters rogatory
14
process. “U.S. witnesses are subject to subpoena by U.S. courts, and those courts can reach
foreign non-party witnesses through the Hague Evidence Convention and letters rogatory.” Shi
v. New Mighty U.S. Tr., 918 F.3d 944, 951-52 (D.C. Cir. 2019). Although CSG has failed
completely to meet its burden to actually establish why a particular named witness would be
unavailable if the case remained here3, even if it did identify such persons properly the same
information that would support that claim would suffice to obtain the issuance of letters rogatory
to compel such testimony in Canada. As discussed herein, the converse is not true due to the
severely constrained restrictions on discovery in British Columbia discussed by our Supreme
Court in Picketts, supra, 215 Conn. at 507 n.14.
When a dismissal is premised on the convenience of witnesses, more than a mere allegation
to that effect is required. Rather, the defendants must establish, with specificity,
inconvenience to witnesses that is sufficiently prejudicial to justify dismissal. A party
seeking to transfer a case for the convenience of witnesses must identify the key witnesses to
be called and must make a general statement of what their testimony will cover. The burden
is upon it to give the names and locations of potential witnesses and the substance of their
testimony. Sufficient information must be included in the affidavits to establish that the
named witnesses are key witnesses who need to be called and that their testimony is
material. The mere assertion that such evidence is irretrievably located in Canada is,
therefore, not adequate to tip the scales in the defendants' favor on a motion to dismiss
for forum non conveniens.
3
“The defendant asserts private interests that involve primarily costs and convenience.
Specifically, the defendant claims that, because the alleged incident occurred in Florida, it would
be more convenient for unnamed medical professionals and other witnesses to testify in Florida.
The persuasiveness of that claim is lost because of its vagueness. See New London County
Mutual Ins. Co., v. Nantes, Superior Court, judicial district of Ansonia–Milford, Docket No.
CV–08–5006397–S (March 11, 2009) (47 Conn. L. Rptr. 409) (on motion to change venue based
on convenience of witnesses, the movant must identify them and show why they are key
witnesses).”Jancaterino v. Karban, No. KNLCV166028397S, 2017 WL 3481298, at *3 (Cole-
Chu, J. July 7, 2017); Parker v. Avis Rent–A–Car System, Inc., Superior Court, judicial district of
New London at Norwich, Docket No. 123310 (July 30, 2002, Corradino, J.) (33 Conn. L. Rptr.
103, 105–06) (finding that simply naming witnesses without providing relevancy of testimony
and making blanket statements concerning witnesses' difficulty traveling and procuring evidence
are inadequate reasons for invocation of forum non conveniens).
15
Travelers Prop. Cas. Co. of Am. v. W. Consol. Premium Properties, Inc., No. CV075012628,
2008 WL 725118, at *1 (Wagner, J,. Feb. 21, 2008)(internal citations omitted)
CSG’s claimed lack of any records regarding required testing of these bicycles and forks,
including records they are obligated by law to keep (Seluga affidavit ¶9), does not weight in their
favor. “The rule is that a manufacturer has a duty to make such tests and inspections . . . as
should be recognized as being reasonably necessary to secure the production of a safe product.”
Schenck v. Pelkey, 176 Conn. 245, 252, 405 A.2d 665, 670 (1978). “Connecticut law recognizes
negligent failure to test as a basis for product liability independent from failure to warn.” Fraser
v. Wyeth, Inc., 992 F. Supp. 2d 68, 84 (D. Conn. 2014).
Firstly, CSG claims that the Proposed Additional Defendants have those critical
documents. Yet despite their tender of the defense of this action and legal obligation to have
those documents, they have apparently done nothing to get those documents. Should the
Proposed Additional Defendants be added we will be in a position to compel those documents as
well as witness testimony from persons with knowledge about them. This would not be the case
if we were forced to attempt to bring a claim against those additional defendants in British
Columbia where the statute of limitations has passed and there is a serious question as to
jurisdiction.
(3) the possibility of viewing the accident scene if such viewing is appropriate to the action;
This is a nonissue in this case. Plaintiff’s would further note that having a jury
view an accident scene is an extraordinarily rare event and CSG has done nothing to
suggest a scene visit would be warranted or is even available under British Columbia law.
“In a products liability case, videotapes, pictures, diagrams, schematics and models are
16
more instructive than an actual view.” Miller v. United Techs. Corp., 40 Conn. Supp.
457, 465, 515 A.2d 390, 395 (Super. Ct. 1986).
The only record evidence tangentially touching on the issue would suggest it is
clearly unnecessary. Plaintiff’s Complaint4 at ¶9 (“On or about October 1, 2018, Plaintiff
was riding his Cannondale Bad Boy 9 bicycle on a smooth bicycle trail when the subject
bicycle suddenly and without warning broke apart catapulting the Plaintiff face first into
the pavement.”).
(4) the enforceability of a judgment.
As discussed above, this also weighs strongly in Plaintiffs’ favor. Obviously a
Connecticut Judgment will be readily and easily enforced against the Connecticut headquartered
defendant. Likewise, a judgment against the Taiwanese supplier parties will be much more
readily enforceable here and in other states who will have assets subject to execution due to the
substantial business Kinesis conducts in the United States. Furthermore, a Connecticut
Judgment will be much more easily enforced in Taiwan due to the supplier parties clear and
substantial interaction with CSG and other US companies and the lack of a statute of limitations
problem as well as the United States unique role in supporting Taiwan’s defense.
(5) obstacles to a fair trial
There would be tremendous obstacles to a fair trial for Plaintiffs if the case is dismissed
4
“In reviewing a motion to dismiss for forum non conveniens, we accept as true the factual
allegations in the complaint to the extent they are uncontroverted by affidavits or other evidence.
. . We also draw all reasonable inferences in favor of the plaintiffs.” Otto Candies, LLC v.
Citigroup, Inc. 963 F.3d 1331, 1336 (11th Cir. 2020)(Reversing grant of forum non conveniens
dismissal)
17
here. As discussed above under British Columbia law, the Plaintiff is subject to a two year
statute of limitations British Columbia Limitation Act, S.B.C. 2012, c.13, part 2, §6, available at
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_12013_01#section6
Thus, even if we could get jurisdiction over the supplier defendants the case would likely be
thrown out as to them before addressing its merits. As such, if the Court were to dismiss CSG
we would still need to bring a new case against the supplier parties here.
Preview
D.N.: FST-CV19-6044429-S : SUPERIOR COURT TRISTIN B. BAYLIS : J.D. OF STAMFORD/NORWALK V. : AT STAMFORD CYCLING SPORTS GROUP, INC : JUNE 14, 2021 OBJECTION TO DEFENDANT’S MOTION TO DISMISS Plaintiffs object to the Fairfield County, Connecticut domiciled Defendant Cycling Sports Group, Inc.’s motion to dismiss for forum non conveniens this product liability action relating to the failure of a fork on a bicycle they sold which led to Plaintiff’s unwitnessed fall from his bike in British Columbia, Canada. This case arises out of an incident occurring on October 1, 2018, when Plaintiff Tristan Baylis was riding his Cannondale Bad Boy 9 bicycle, sold by Defendant Cycling Sports Group, Inc. (CSG) on a smooth bicycle trail when the subject bicycle suddenly and without warning broke apart catapulting the Plaintiff face first into the pavement. Plaintiff’s Complaint ¶9. CSG is headquartered in Wilton Connecticut. More specifically, the fork of the CSG bicycle broke at the steerer tube causing the front wheel to fall off the frame of the bicycle causing Plaintiff to be catapulted forward with great force into the pavement wherein serious and permanent injuries were sustained. Plaintiff’s Complaint ¶10. This fall was unwitnessed. Seluga affidavit ¶25. The subject bicycle and fork are currently in Connecticut with the Plaintiff’s expert, Kristopher Seluga, PE. Seluga affidavit ¶4. The Plaintiffs commenced this action in 2019. In early 2020, the Defendant filed a motion to dismiss, claiming forum non conveniens. Thereafter, the parties conducted limited discovery related to the forum non conveniens issue. ORAL ARGUMENT REQUESTED TESTIMONY NOT REQUIRED 1 During the course of discovery CSG has revealed that two additional parties, the proposed additional Defendants Kinesis Industry Co., Ltd. (“Kinesis) and Southern Cross International Co. Ltd. a/k/a Southern Cross Bicycle (“SCB”) played a key role in manufacturing the subject fork that failed and assembling the subject bicycle. Additionally, CSG has made clear that it has limited information regarding the testing, design and specifications of this fork and bicycle and the forks use in other bicycles and declared that these Proposed Additional Defendants would have more information in that regard. Seluga affidavit ¶8; CSG’s April 19, 2021 Supplemental Objections and Responses to Plaintiff’s Interrogatories, answer #19 (091-092) and deposition of David Campbell p. 17, 26-27, 49 (110-113). In response to disclosure regarding the supplier parties, Plaintiffs have moved to cite them in as additional defendants, which the Court has scheduled to be heard concurrently with the motion to dismiss. For purposes of this motion it is important to note that the statute of limitations in British Columbia is two years, and thus appears to have run against the supplier defendants. See https://www2.gov.bc.ca/gov/content/justice/about-bcs-justice-system/legislation- policy/legislation-updates/limitation-act. Likewise, it is highly doubtful British Columbia would have personal jurisdiction over these Taiwanese companies that would be recognized in Taiwan, or that a judgment against them there could be effectuated as conveniently in the United States. As more fully explained in the discussion herein and the attached affidavit, deposition transcript and other exhibits, there are a number of important witnesses who will need to testify in this case, both employees and agents of CSG at its headquarters in Fairfield County, Connecticut as well as former employees in Connecticut and elsewhere that CSG will have no ability to produce if the case is transferred to Canada. 2 Under the facts of this case, it is clear that Defendant has not met its heavy burden to impose the drastic, unusual and potentially unconstitutional remedy of dismissal for forum non conveniens. I. ARGUMENT. A. Law regarding forum non coveniens The key Connecticut Supreme Court cases dealing with a forum non conveniens claim in this setting are Picketts v. Int'l Playtex, Inc., 215 Conn. 490, 576 A.2d 518 (1990) and Durkin v. Intevac, Inc., 258 Conn. 454, 478, 782 A.2d 103, 119 (2001). Of the two Picketts is clearly the most on point with this case, specifically including a product liability claim brought by British Columbia Plaintiffs against a company headquartered in Fairfield County, Connecticut. In Picketts our Supreme Court reversed as an abuse of discretion the trial courts dismissal for forum non conveniens, and set forth some important ground rules. Emphasis on the trial court's discretion does not, however, overshadow the central principle of the forum non conveniens doctrine that unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed ... Although it would be inappropriate to invoke rigid rule to govern discretion ... it bears emphasis that invocation of the doctrine of forum non conveniens is a drastic remedy ... which the trial court must approach with caution and restraint. The trial court does not have unchecked discretion to dismiss cases from a plaintiff's chosen forum simply because another forum, in the court's view, may be superior to that chosen by the plaintiff ... Although a trial court applying the doctrine of forum non conveniens must walk a delicate line to avoid implicitly sanctioning forum-shopping by either litigant at the expense of the other ... it cannot exercise its discretion in order to level the playing field between the parties. The plaintiff's choice of forum, which may well have been chosen precisely because it provides the plaintiff with certain procedural or substantive advantages, should be respected unless equity weighs strongly in favor of the defendant a representation of the strong presumption in favor of the plaintiff's chosen forum, before attempting to balance the private and public interest factors relevant to a forum non conveniens motion. Picketts, supra, 215 Conn. at 500–01 (Citations omitted; emphasis omitted; internal quotation marks omitted.) 3 Durkin v. Intevac, Inc., 258 Conn. 454, 782 A.2d 103 (2001) was a highly unusual case involving a mid air collision of two Australian military helicopters resulting in numerous injuries and 18 deaths, which “constituted the largest peacetime military disaster in Australia since 1964.” Id. at 459. Thereafter, the Australian Army convened a Board of Inquiry which conducted extensive investigations, interviewed 144 witnesses and thousands of pages of documents. Id. The Board identified numerous causes of the collision unrelated to product failure, including deficient leadership, training, operation and planning. Id. This Board investigation and finding was pivotal to the Court’s analysis. Id. at 469 (“we also view the board's unequivocal finding that the accident was caused by poor planning and implementation, and not by defective products, as highlighting the importance of access to the board's report and the evidence and statements of witnesses upon which that report was based.”). Of additional critical significance to the Durkin decision was the inability to implead the Australian government or the Australian Army to the action in Connecticut1. “In the present case, it is undisputed that the defendants cannot implead the Australian government or the Australian Army as third parties if this action remains in Connecticut. . . We, therefore, conclude that the inability to implead third parties is a factor that, under the circumstances of this case, weighs significantly in favor of dismissal.” Id. at 477-78. Durkin did not overrule or modify Picketts, instead it quoted extensively from Picketts and did not change the baseline rules that make such a dismissal highly unusual and unfavored. As repeated by the Court in Durkin 1 Our Supreme Court specifically noted that under Australian procedure these governmental entities were not deemed immune and could be held liable if impleaded there. Durkin v. Intevac, Inc., 258 Conn. 454, 478 n.19, 782 A.2d 103, 119 (2001)(“We note that it is undisputed that the Australian government does not benefit from the doctrine of sovereign immunity and, thus, is subject to being sued in Australia.”) 4 The [plaintiffs'] choice of forum, which may well have been chosen precisely because it provides the plaintiff[s] with certain procedural or substantive advantages, should be respected unless equity weighs strongly in favor of the defendant[s]. “[T]he overriding inquiry in a forum non conveniens motion is not whether some other forum might be a good one, or even a better one than the [plaintiffs'] chosen forum. The question to be answered is whether [the plaintiffs'] chosen forum is itself inappropriate or unfair because of the various private and public interest considerations involved.... Accordingly, the trial court, in exercising its structured discretion, should place its thumb firmly on the [plaintiffs'] side of the scale, as a representation of the strong presumption in favor of the [plaintiffs'] chosen forum, before attempting to balance the private and public interest factors relevant to a forum non conveniens motion. Durkin v. Intevac, Inc., 258 Conn. 454, 464–65, 782 A.2d 103, 111 (2001)(quoting Picketts). In addition to these Supreme Court cases, there is also a significant state constitutional limitation to the doctrine of forum non conveniens, which our Appellate Court has expressly recognized in reversing a dismissal under this exceptional doctrine. Conn. Const. art. I, § 10 “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” When a litigant properly presents his concerns before a state court, that court should not lightly sweep those concerns under the putative judicial carpet of another state. Connecticut's constitution specifically assures the citizens under its protection that the state's courts will be open for the resolution of their disputes. Conn. Const., art. I, § 10. Thus, Connecticut's courts should be even more reluctant than federal courts to dismiss claims that are properly before them. Sabino v. Ruffolo, 19 Conn. App. 402, 408, 562 A.2d 1134, 1136–37 (1989). “Therefore, except where extraordinary circumstances exist, the doctrine should not be applied by state courts.” Id. at 410. Sabino is still good law, and it should be noted that the state constitutional issue was simply not raised in Durkin or Picketts, so the Supreme Court’s failure to address that issue in 5 those opinions has no significance2. Connecticut Courts have followed Sabino on this precise issue. “When a litigant properly presents his concerns before a state court, that court should not lightly sweep those concerns under the putative judicial carpet of another state. Connecticut's constitution specifically assures the citizens under its protection that the state's courts will be open for the resolution of their disputes. Conn. Const., art. I, § 10. Thus, Connecticut's courts should be even more reluctant than federal courts to dismiss claims that are properly before them.” Sabino v. Ruffolo, 19 Conn.App. 402, 408, 562 A.2d 1134 (1989). Henderson v. Ripka, No. HHDCV166072393S, 2017 WL 1901126, at *2 (Shapiro, J., Apr. 17, 2017). Aetna claims, in the motion to dismiss, that Connecticut is an inconvenient forum, under the doctrine of “forum non conveniens.” It claims that Hong Kong is a more convenient forum. The court does not accept that proposition. Although witnesses may be in Hong Kong, there is no reason to expect that depositions, if necessary, cannot be taken in Hong Kong. Many of the decisions required to be arrived at involve the interpretation of written documents which are easily available to both parties. . . It is the avowed public policy of this state that “all courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice, without sale, denial or delay.” Sec. 10, Constitution of 1965. Lo v. Aetna Int'l, Inc., No. CV 960565058S, 1997 WL 263715, at *1 (Sullivan, J., May 12, 1997). These principles have long been recognized. “An alien stands on the same footing ordinarily as a nonresident. Our public policy, as reflected in our constitution, is that our courts should be open to ‘every person.’” Santangelo v. Santangelo, 137 Conn. 404, 408, 78 A.2d 245, 247 (Conn. 1951). 2 Although the constitutional issue was not raised in these cases, the sentiment underlying it was recognized by the Court. Durkin v. Intevac, Inc., 258 Conn. 454, 465, 782 A.2d 103, 112 (2001)(quoting Picketts)(“Connecticut continues to have a responsibility to those foreign plaintiffs who properly invoke the jurisdiction of this forum especially in the somewhat unusual situation in which it is the forum resident who seeks dismissal.”) 6 Casey v Truss 720 P2d 985 (Colo App 1986), held that the trial judge had erred in dismissing the action on the ground of forum non conveniens. In doing so the court specifically referenced its state constitutional open courts provision. Id. at 986 (“Application of this doctrine is limited by Colo. Const. art. II, § 6, which requires all courts to be open to every person.”). Notably, Casey was expressly cited to by our Appellate Court in Sabino, supra 19 Conn. App. at 406. One additional case of importance is the recent thorough and extensive analysis by this honorable Court earlier this year, denying a motion to dismiss claiming forum non conveniens. Shipman Assocs., LLC v. White & Case, LLP, No. FSTCV206046192S, 2021 WL 838276 (Povodator, J., Feb. 5, 2021)(copy attached). The Court set forth in detail the required analysis. our Supreme Court has stated that the following private interest factors must be considered when determining whether to apply the doctrine of forum non conveniens: ‘(1) the relative ease of access to sources of proof; (2) the availability of compulsory process for the attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3) the possibility of viewing the accident scene if such viewing is appropriate to the action; (4) the enforceability of a judgment; (5) the relative advantages and obstacles to fair trial; and (6) all other practical problems that make trial of a case easy, expeditious and inexpensive.’ Durkin v. Intevac, Inc., supra, 258 Conn. at 467, 782 A.2d 103. If the balance of private interest factors is equal, the court must then consider public interest factors. Id., at 466, 782 A.2d 103. Those public interest factors as set forth in Gulf Oil Corp v. Gilbert, supra, at 508-09, 67 S.Ct. 839, include the following considerations: “[A]dministrative 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. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case 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.” These private and public factors are bracketed by the need for a determination as to “whether an adequate alternative forum exists that possesses jurisdiction over the whole case” and assurance “that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice.” Durkin v. Intevac, Inc., 258 Conn. 454, 466, 782 A.2d 103, 112 (2001). 7 Id. at *2. The Court further identified an inconsistency in the instructions of these cases. Although the defendant is correct in stating that the appellate and trial court decisions describe the situation in terms of equality (“if the balance of private interest factors is equal” 258 Conn. 466), that facially is inconsistent with the proposition that the scale starts off tipped in favor of the plaintiff's choice of forum. (The “thumb on the scale” aspect of the plaintiff's choice of forum is not generally identified as one of the private interest factors being weighed.) Id., at *12 n.10. It is also important to keep in mind that the moving party bears the burden of proof, production and persuasion on a motion for forum non conveniens. Durkin v. Intevac, Inc., 258 Conn. 454, 782 A.2d 103, 115 (2001) (in forum non conveniens analysis, defendants bear burden and must go beyond mere assertion that evidence is in another forum). This burden must be satisfied by clear evidence, not just bald assertions. The defendants, however, bore the burden of persuasion that the chosen forum is inconvenient to potential witnesses for the defense. When a dismissal is premised on the convenience of witnesses, more than a mere allegation to that effect is required. Rather, the defendants must establish, with specificity, inconvenience to witnesses that is sufficiently prejudicial to justify dismissal. A party seeking to transfer a case ... for the convenience of witnesses must identify the key witnesses to be called and must make a general statement of what their testimony will cover. The burden is upon it to give the names and locations of potential witnesses and the substance of their testimony. Sufficient information must be included in the affidavits to establish that the named witnesses are key witnesses who need to be called and that their testimony is material. The mere assertion that such evidence is irretrievably located in Canada is, therefore, not adequate to tip the scales in the defendants' favor on a motion to dismiss for forum non conveniens Picketts, supra, 215 Conn. at 509–10. The Plaintiffs have submitted herewith an affidavit from Plaintiff’s expert, Kristopher Seluga, PE, and engineer who lives and works in Connecticut and is currently in possession of the subject bicycle and fork, which explains in detail the importance of various persons and documents located in Connecticut as well as important witnesses who are no longer employed by CSG (who therefore would have no ability to produce them voluntarily even if such discovery 8 was available in British Columbia). Although this affidavit and the supporting documentation attached and referenced therein are rather conclusive on this issue, it should be noted that Plaintiff had no obligation to even provide such an affidavit. That conclusion stands the applicable burden of proof on its head and totally removes from the balancing process the preference to which the plaintiffs' choice of forum is entitled. The defendants cannot meet their own evidentiary burden by pointing to alleged deficiencies in affidavits that the plaintiff had no obligation to provide. Picketts, supra, 215 Conn. at 511. B. Applying the law regarding forum non coveniens to the facts of this case, it is clear that Defendant has failed to meet its burden, as Connecticut is clearly the best forum to fairly adjudicate the whole case. The Defendant’s motion fails the first test for forum non conveniens, before we even get to the private and public interest factors. “First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case.” Durkin v. Intevac, Inc., 258 Conn. 454, 466, 782 A.2d 103, 112 (2001). “These private and public factors are bracketed by the need for a determination as to `whether an adequate alternative forum exists that possesses jurisdiction over the whole case’ and assurance `that the plaintiffs can reinstate their action in the alternative forum without undue inconvenience or prejudice.’” Shipman Assocs., LLC, supra, 2021 WL 838276, at *2 (quoting Durkin). In the present case, there is a serious question as to whether British Columbia possesses jurisdiction over the whole case. In particular, it is highly unlikely that British Columbia could properly assert jurisdiction over the supplier parties the Plaintiff is currently seeking to implead here. For starters, service of process is a serious challenge due to Taiwan’s unique legal status. “Because Taiwan is not a signatory to the Hague Convention on service of process or any other 9 international agreement that governs service of process, there is no international agreement that dictates how Plaintiffs can effectuate service on Defendant.” Noble Sec., Inc. v. Ingamar Co., No. 21-CV-1372 (MKB), 2021 WL 2012508, at *5 (E.D.N.Y. May 20, 2021) Plaintiffs are comfortable we can properly assert such jurisdiction in Connecticut due to the supplier defendants purposeful targeting of substantial business with a Connecticut company, as more fully set forth in the jurisdictional allegations (¶¶43-59) of Plaintiff’s Proposed Amended Complaint filed with their motion to cite in (#120.00). It is far less certain that British Columbia could properly assert such jurisdiction, and even less likely if such an assertion would later be recognized in Taiwan. Pursuant to Taiwan Civil Code Sec. 402, Taiwan will only recognize a foreign judgment if its Courts find “(1) the foreign court had proper jurisdiction over the subject matter of the suit, as judged by the laws of Taiwan; … (4) the defendant, if a private or corporate citizen of Taiwan, was properly served; and (5) judgments of the courts of Taiwan are enforceable on a reciprocal basis.” §23:29. Dispute resolution—Litigation, 6A Eckstrom's Licensing: Joint Ventures § 23:29. Kinesis, the subject fork manufacturer does substantial business throughout the United States. https://en.wikipedia.org/wiki/Kinesis_Industry (“Brands also manufactured by Kinesis include Commencal, Diamondback Bicycles, Felt Bicycles, GT Bicycles, Haro, Ideal, Jamis, K2, Kona, Kross, Raleigh, Redline Bicycles, Santa Cruz Bicycles, Schwinn, Storck, Sunn, Titus Cycles, Torker, and Trek — as well as the brands marketed by the U.S. company Bikesdirect.com: Motobecane USA, Dawes USA, Cycles Mercier, Windsor America.”). As a result, Plaintiff’s will comfortably be able to enforce any judgment they get either directly in Connecticut or through a domestication and turnover order in any state where any of the above referenced Brands are located. This would be the obligation of 10 every state to recognize under the Full Faith and Credit clause of the United States Constitution. Conversely a judgment of dubious jurisdictional provenance (assuming the untimeliness issue can somehow be overcome as well) in British Columbia would face much greater challenges in enforcement both in Taiwan and the United States. Thus, the Court need not even contend with the private and public factors set forth by our Supreme Court as British Columbia is not an adequate forum for the whole case. However, it is clear those also strongly favor Plaintiffs’ valid choice of forum, as analyzed below. (1) the relative ease of access to sources of proof. The focal point of any product liability action is the product itself, which is currently in Connecticut. The adequacy of a product's design and testing, and the information supplied to formulate the basic package instructions and warnings provide the operative nucleus for a product liability action. The creative or authoritative source of both design specifications and product testing information is thus of material significance to the assignment of liability. Picketts v. Int'l Playtex, Inc., 215 Conn. 490, 494 n.5, 576 A.2d 518, 521 (1990). In Albright v. Combe Incorporated, 115 N.Y.S.3d 700, 702 (N.Y. App. Feb. 5, 2020), the court recently reversed a dismissal for forum non conveniens filed by a resident manufacturer regarding a suit in its home county, noting that “Just For Men’s design, manufacturing, labeling, advertising, and executive decision-making all allegedly occurred in White Plains, where Combe Incorporated has a principal place of business.” Therefore, the court held that suit was properly maintained there, “despite the fact that evidence of damages would most often be found where the plaintiff resides.” As set forth in detail in the Seluga affidavit attached hereto, there are numerous significant witnesses and likely relevant documents in Connecticut or accessible in Connecticut. The Defendant’s argument seems focused on the likelihood that many of Plaintiff’s damages 11 witnesses are located in British Columbia. This is a rather misleading contention as the essence of a defendant’s forum non conveniens claim must rest on a showing of significant hardship to that defendant. “The defendants bear the burden of persuasion that the chosen forum is inconvenient to potential witnesses for the defense.” Travelers Prop. Cas. Co. of Am. v. W. Consol. Premium Properties, Inc., No. CV075012628, 2008 WL 725118, at *1 (Wagner, J., Feb. 21, 2008). A feigned claim of concern for possible inconvenience to Plaintiff’s witnesses is not valid, as this honorable Court has recently found. The fact that the plaintiff's witnesses may be from remote states is a misleading and inherently dubious consideration. First, it is or should not be the defendant's concern if the plaintiff chooses a forum that the defendant thinks may be less convenient to the plaintiff's witnesses, especially to the extent that two of the three witnesses identified are representatives/principals. Shipman Assocs., LLC v. White & Case, LLP, No. FSTCV206046192S, 2021 WL 838276, at *8–9 (Povodator, J., Feb. 5, 2021). The Court has also recently noted that electronic document management, remote depositions and even remote trial testimony has significantly minimized and potential hardship with regards to witness or document location. Id. at *12. Furthermore, Plaintiffs expressly represent that should the case remain here we will be retaining a local doctor to testify regarding Plaintiff’s medical claims who the Defendants will be able to depose and cross examine at trial with no inconvenience. This issue was dealt with in a similar scenario by the 3d Circuit in reversing a forum non conveniens dismissal in a fairly similar situation in which the moving defendant said it would make available witnesses and documents but the record showed much of this evidence was with third parties not under the defendant’s control who would be highly unlikely to be compelled to give discovery as a third party under British Columbia law. Lacey v. Cessna Aircraft Co., 932 F. 2d 170, 175 (3rd Cir. 1991). 12 In dismissing Lacey's action, the district court did not consider the impediments that Lacey might face in gaining access to sources of proof in British Columbia, impediments that potentially rob British Columbia of its practical value as a forum. In view of this error, as well as other subsidiary points discussed below, we are unable to defer to the district court's conclusion "that the public and private interests both preponderate strongly in favor of dismissal." 736 F.Supp. at 669. Rather, we think that an order which dismisses a suit on forum non conveniens grounds without taking into account a critical limitation on the plaintiff's ability to prosecute his or her action in the alternative forum constitutes an abuse of discretion. Lacey, supra, 932 F. 2d at 175. As in Lacey, CSG’s claim that it will make available witnesses and documents under its control rings hollow when the record reveals much of the key evidence is with the supplier parties and many of the key witnesses no longer work for CSG. (2) The Availability of Compulsory Process for the Attendance of Unwilling Witnesses, and the Cost of Obtaining Attendance of Willing Witnesses. This issue significantly favors Plaintiffs. As set forth in the Seluga affidavit, there are numerous witnesses of likely significance that would be lost to Plaintiffs if the case was transferred to Canada. These include Curt Davis, the Product Manager for the subject bicycle and fork for CSG (see deposition of David Campbell at 12:6-12:20, 005). According to CSG, his last known address was in Sandy Hook, Connecticut, although he no longer works for CSG at this time (see deposition of David Campbell at 12:21-12:24, 005-006); Gilbert Kisamore who ran the Cannondale Test Lab in the pertinent time period, and Chris Peck, who was the Vice President of Engineering in the pertinent time period (see deposition of David Campbell at 30:5- 31:18, 007-008). Pursuant to Mr. Campbell’s testimony they no longer work for CSG. Seluga Affidavit ¶¶19-20. There are also numerous other CSG employees who our expert believes would likely have pertinent information Seluga Affidavit ¶¶21-22. 13 Notably, a number of these people live in Connecticut, and for those who don’t we can still readily get a commission to take their deposition out of state. However, if the case is transferred to British Columbia we will likely lose any reasonable ability to depose these important witnesses. Our Supreme Court addressed this issue in some detail in a footnote in Picketts, specifically recognizing the severe limitations of British Columbia procedure in obtaining testimony from both corporate employees and former employees and other third parties (such as the Proposed Additional Defendants here). Picketts v. Int'l Playtex, Inc., 215 Conn. 490, 507 n.14, 576 A.2d 518, 527 (1990). The Court noted how British Columbia allows a corporate defendant to select a single representative rather than the Plaintiff selecting the employee they want to examine. Id. The Court further noted that British Columbia does not have compulsory process and a severe restriction on depositions of nonparty witnesses. “Finally, discovery through non-party witnesses, such as former employees of International Playtex, Inc., is severely restricted not only because of the lack of compulsory process but due to the inherent limitation on the availability of pretrial depositions of nonparty witnesses.” Id. The only witness in Canada Defendant has specifically identified is a person at a bike shop that communicated with the Defendant about the subject incident. Campbell affidavit at ¶24. No information is given as to what important testimony they might have nor why it would not be expected for them to voluntarily speak seeing as they had done so already and were in an ongoing business relationship with the Defendant. The Defendant’s deposition made clear that this person was working at a Cannondale authorized dealer and cooperated with them upon request with no legal process needed. Deposition of David Campbell pp. 56-59 (114-117). Even if one was to improperly assume this witness with unknown knowledge now is refusing to testify voluntarily, CSG would be able to compel the same in Canada through the letters rogatory 14 process. “U.S. witnesses are subject to subpoena by U.S. courts, and those courts can reach foreign non-party witnesses through the Hague Evidence Convention and letters rogatory.” Shi v. New Mighty U.S. Tr., 918 F.3d 944, 951-52 (D.C. Cir. 2019). Although CSG has failed completely to meet its burden to actually establish why a particular named witness would be unavailable if the case remained here3, even if it did identify such persons properly the same information that would support that claim would suffice to obtain the issuance of letters rogatory to compel such testimony in Canada. As discussed herein, the converse is not true due to the severely constrained restrictions on discovery in British Columbia discussed by our Supreme Court in Picketts, supra, 215 Conn. at 507 n.14. When a dismissal is premised on the convenience of witnesses, more than a mere allegation to that effect is required. Rather, the defendants must establish, with specificity, inconvenience to witnesses that is sufficiently prejudicial to justify dismissal. A party seeking to transfer a case for the convenience of witnesses must identify the key witnesses to be called and must make a general statement of what their testimony will cover. The burden is upon it to give the names and locations of potential witnesses and the substance of their testimony. Sufficient information must be included in the affidavits to establish that the named witnesses are key witnesses who need to be called and that their testimony is material. The mere assertion that such evidence is irretrievably located in Canada is, therefore, not adequate to tip the scales in the defendants' favor on a motion to dismiss for forum non conveniens. 3 “The defendant asserts private interests that involve primarily costs and convenience. Specifically, the defendant claims that, because the alleged incident occurred in Florida, it would be more convenient for unnamed medical professionals and other witnesses to testify in Florida. The persuasiveness of that claim is lost because of its vagueness. See New London County Mutual Ins. Co., v. Nantes, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–08–5006397–S (March 11, 2009) (47 Conn. L. Rptr. 409) (on motion to change venue based on convenience of witnesses, the movant must identify them and show why they are key witnesses).”Jancaterino v. Karban, No. KNLCV166028397S, 2017 WL 3481298, at *3 (Cole- Chu, J. July 7, 2017); Parker v. Avis Rent–A–Car System, Inc., Superior Court, judicial district of New London at Norwich, Docket No. 123310 (July 30, 2002, Corradino, J.) (33 Conn. L. Rptr. 103, 105–06) (finding that simply naming witnesses without providing relevancy of testimony and making blanket statements concerning witnesses' difficulty traveling and procuring evidence are inadequate reasons for invocation of forum non conveniens). 15 Travelers Prop. Cas. Co. of Am. v. W. Consol. Premium Properties, Inc., No. CV075012628, 2008 WL 725118, at *1 (Wagner, J,. Feb. 21, 2008)(internal citations omitted) CSG’s claimed lack of any records regarding required testing of these bicycles and forks, including records they are obligated by law to keep (Seluga affidavit ¶9), does not weight in their favor. “The rule is that a manufacturer has a duty to make such tests and inspections . . . as should be recognized as being reasonably necessary to secure the production of a safe product.” Schenck v. Pelkey, 176 Conn. 245, 252, 405 A.2d 665, 670 (1978). “Connecticut law recognizes negligent failure to test as a basis for product liability independent from failure to warn.” Fraser v. Wyeth, Inc., 992 F. Supp. 2d 68, 84 (D. Conn. 2014). Firstly, CSG claims that the Proposed Additional Defendants have those critical documents. Yet despite their tender of the defense of this action and legal obligation to have those documents, they have apparently done nothing to get those documents. Should the Proposed Additional Defendants be added we will be in a position to compel those documents as well as witness testimony from persons with knowledge about them. This would not be the case if we were forced to attempt to bring a claim against those additional defendants in British Columbia where the statute of limitations has passed and there is a serious question as to jurisdiction. (3) the possibility of viewing the accident scene if such viewing is appropriate to the action; This is a nonissue in this case. Plaintiff’s would further note that having a jury view an accident scene is an extraordinarily rare event and CSG has done nothing to suggest a scene visit would be warranted or is even available under British Columbia law. “In a products liability case, videotapes, pictures, diagrams, schematics and models are 16 more instructive than an actual view.” Miller v. United Techs. Corp., 40 Conn. Supp. 457, 465, 515 A.2d 390, 395 (Super. Ct. 1986). The only record evidence tangentially touching on the issue would suggest it is clearly unnecessary. Plaintiff’s Complaint4 at ¶9 (“On or about October 1, 2018, Plaintiff was riding his Cannondale Bad Boy 9 bicycle on a smooth bicycle trail when the subject bicycle suddenly and without warning broke apart catapulting the Plaintiff face first into the pavement.”). (4) the enforceability of a judgment. As discussed above, this also weighs strongly in Plaintiffs’ favor. Obviously a Connecticut Judgment will be readily and easily enforced against the Connecticut headquartered defendant. Likewise, a judgment against the Taiwanese supplier parties will be much more readily enforceable here and in other states who will have assets subject to execution due to the substantial business Kinesis conducts in the United States. Furthermore, a Connecticut Judgment will be much more easily enforced in Taiwan due to the supplier parties clear and substantial interaction with CSG and other US companies and the lack of a statute of limitations problem as well as the United States unique role in supporting Taiwan’s defense. (5) obstacles to a fair trial There would be tremendous obstacles to a fair trial for Plaintiffs if the case is dismissed 4 “In reviewing a motion to dismiss for forum non conveniens, we accept as true the factual allegations in the complaint to the extent they are uncontroverted by affidavits or other evidence. . . We also draw all reasonable inferences in favor of the plaintiffs.” Otto Candies, LLC v. Citigroup, Inc. 963 F.3d 1331, 1336 (11th Cir. 2020)(Reversing grant of forum non conveniens dismissal) 17 here. As discussed above under British Columbia law, the Plaintiff is subject to a two year statute of limitations British Columbia Limitation Act, S.B.C. 2012, c.13, part 2, §6, available at https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_12013_01#section6 Thus, even if we could get jurisdiction over the supplier defendants the case would likely be thrown out as to them before addressing its merits. As such, if the Court were to dismiss CSG we would still need to bring a new case against the supplier parties here.