In a case applying the statutory forum non conveniens provision governing personal injury and wrongful death cases, the Texas Supreme Court has held that a Harris County trial court clearly abused its discretion by denying a defendant’s motion to dismiss on forum non conveniens grounds.
In re Weatherford International, LLC and Weatherford Services, Ltd. (No. 22-1014; April 26, 2024) stemmed from a wrongful death suit filed in Harris County by the family of an employee of Weatherford Services, Inc., a Bermuda company operating out of Houston. Weatherford International is an affiliated company based in Houston. In September 2018 the employee accepted an overseas assignment to work for Weatherford Services S. de R.L., an affiliate organized under Panamanian law that operated from Egypt. Weatherford Services continued to pay the employee, retain taxes, and administer his benefits during the assignment. Pursuant to Weatherford Houston’s policy, all employees of Weatherford entities who are posted overseas must take a medical examination prior to beginning the assignment, and again every two years of the assignment. In this case, employee had two exams. The first occurred in October 2018, prior to his relocation and also necessary for him to visit offshore rigs in Egypt and Tunisia. Weatherford Egypt arranged for this exam to be performed at Degla Medical Center in Egypt. The second exam, conducted by International SOS, occurred the following month in South Africa and provided the clearance required by Weatherford Houston’s policy.
Degla’s (the first) exam detected a renal mass around the employee’s left tumor and certified that he should receive further assessment. Weatherford Houston, however, contended that Degla did not transmit the certificate to Weatherford Egypt because the rig visits were canceled. The second exam didn’t even mention the renal mass, though it did indicate that the employee’s uric acid levels were outside the normal range. Unfortunately, the employee did not learn of Degla’s findings until a year later, after he requested Degla’s medical certificate from Weatherford Egypt. The mass required surgery to remove it, but the employee did not survive. When a dispute arose over the proceeds of the employee’s life insurance policy, Weatherford Houston filed a petition for interpleader in Harris County district court and paid the proceeds into the court registry. The employee’s widow, a South African citizen, filed a supplemental petition asserting wrongful death claims against Weatherford Houston, seeking actual damages for the company’s negligence in failing to inform the decedent of the renal mass and for not having a specific policy requiring its clinics to share health information with tested employees. The employee’s children, citizens of Scotland, joined the suit. Weatherford Houston moved to dismiss on forum non conveniens grounds. The trial court denied the motion, and the Houston [1st] Court of Appeals denied mandamus without substantive explanation. Weatherford Houston sought mandamus relief from SCOTX.
In a per curiam opinion, SCOTX conditionally granted the writ and ordered the case dismissed. Conducting its analysis according to the six-part balancing test established by § 71.051, CPRC, the Court concluded that each of the factors weighed in favor of dismissal. The following is a brief discussion of the Court’s determination of each factor:
- “An alternative forum exists in which the claim or action may be tried.” The parties agreed that Weatherford was amenable to suit in Egypt. Therefore, an alternative forum existed, and this factor weighed in favor of Weatherford.
- “The alternate forum provides an adequate remedy.” The Court observed that “the alternative forum provides an adequate remedy if ‘the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they receive in an American court.’” Plaintiffs presented a declaration by an Egyptian lawyer supporting that this factor weighed in their favor. The Court, however, held that “[a]lthough Egyptian damages may be less due to the exchange rate,” Weatherford showed that Egyptian courts recognize tort claims and provide a number of tort remedies to the decedent’s heirs. Consequently, the Court weighned this factor in Weatherford’s favor.
- “Maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party.” This factor required the Court to consider Weatherford’s “private interests,” including the location of relevant documents, whether witnesses may be reached by compulsory process in Texas, and whether all claims—including a defendant’s indemnity claims, if any—“would be far more convenient . . . to resolve all claims in one trial” (citation omitted). The parties disagreed on the location of the relevant witnesses, Plaintiffs understandably arguing that they could be found at Weatherford Houston, Defendants that it doesn’t have a global policy on the matter and that the relevant witnesses are in Egypt. The Court sided with Weatherford, pointing out that the “key witnesses” were the physician who performed the exam, the clinic that established policies for sharing the results, and employees of Weatherford Egypt who wrote or carried out its policies regarding sharing the results of a medical exam. None of these potential witnesses could be reached by the compulsory subpoena power of a Texas trial court. The third factor went to Weatherford.
- “The alternate, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff’s claim.” Since Weatherford had already consented to jurisdiction in Egypt and Egyptian courts have jurisdiction over the claims, no “jurisdictional difficulty” existed. Fourth factor likewise to Weatherford.
- “The balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state.” This factor overlaps with the second factor, as the Court had already considered Weatherford’s “private interests.” Lacking a compulsory process to get discovery in Egypt and unwilling to impute one entity’s actions to a separate affiliated entity, the Court declined Plaintiffs’ argument that any evidence in the hands of Weatherford Egypt could be easily accessed by Weatherford Houston. Additionally, the choice-of-law factors weighed heavily in Weatherford’s favor, as Egyptian law probably governed the action. Another round to Weatherford.
- “The stay or dismissal would not result in unreasonable duplication or proliferation of litigation.” For starters, the Court pointed out that the life-insurance interpleader action that started the whole thing is unrelated to the wrongful death action, so there was no duplication there. Second, Plaintiffs could bring its death claims in Egypt in one proceeding. Third, Plaintifs’ claims could likewise be brought in South Africa or Scotland. The dismissal thus would not result in duplicative litigation, weighing in favor of Weatherford.
This decision builds on the jurisprudence around § 71.051, which as you recall was enacted as part of H.B. 4 in 2003. Those interested in the statute—and there are many—will benefit from the Court’s analysis of the statutory test and the facts the Court found determinative.
