The opinion of the court was delivered by: RICHEY
This case is before the Court on plaintiff's motion to vacate a prior order of dismissal entered by the Court, defendant Ex-Lax's motion to dismiss for lack of in personam jurisdiction as to said defendant, and defendant Safeway Stores, Inc.'s motion to transfer venue to the United States District Court for the District of Arizona.
This Court dismissed this case on October 8, 1976, because of the unexplained failure of plaintiff's counsel to appear at a status call scheduled for that date. Upon consideration of the representations of counsel at oral argument of these motions before the Court and the positions of the parties as set forth in their briefs, the Court concludes that counsel's failure to appear was due to "excusable neglect," and that relief under Fed.R.Civ.P. 60(b) is therefore appropriate. Accordingly, the Court will grant plaintiff's motion to vacate the prior order of dismissal.
Turning to the motion to dismiss defendant Ex-Lax from the case, the Court notes first that plaintiffs assert long-arm jurisdiction over said defendant under 13 D.C. Code § 423(a)(4) (1973),
which provides, in pertinent part, that:
(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia . . . .
Assuming, as seems likely, that Ex-Lax "derives substantial revenue from goods used or consumed" in the District, the question before the Court is whether the allegedly tortious act involved in this case caused tortious injury in the District, even though that act was performed outside the District.
For purposes of the instant motion only, defendant Ex-Lax has admitted the allegations of plaintiff's complaint as corroborated by her deposition. Those allegations, as pertinent to this motion, are as follows: Plaintiff was in Phoenix, Arizona on March 26, 1974, in connection with her occupation as promoter and manager of an entertainment group. On that day, she purchased a package of eight Ex-Lax pills and consumed two of them in accordance with the instructions on the package. Within two-and-a-half hours after she consumed the pills, she began to suffer a severe reaction to them. She went to the emergency room of a hospital in Phoenix for treatment. She later saw a private physician in Phoenix, who prescribed medication for her. She left Phoenix in the first week of April, but did not return to her home in the District of Columbia until some time in May.
Plaintiff alleges that Ex-Lax's pills were and are unfit for human consumption because they contain several allegedly repugnant ingredients. She also alleges that as a result of consuming two of defendant's defective products, she suffered severe physical injuries, which have necessitated medical treatment until the present time. She also alleges that she has suffered mental anguish requiring medical treatment.
Defendant Ex-Lax's position on the question before the Court is that plaintiff took the pills in Arizona; she received emergency medical treatment in Arizona; she later saw a physician in Arizona; and she did not return to this jurisdiction until more than a month after she consumed the allegedly defective product. Thus, defendant maintains, it is clear that both the allegedly tortious act and the injury occurred in Arizona.
Plaintiff's position is that the injury occurred in the District because "plaintiff suffered extreme physical and mental injury on a continuing basis in the District of Columbia, as well as severe financial injury from the fact that the physical injury prevented her from further carrying on her business activities and resulted in the loss of substantial income which still continues to this day." Plaintiff's brief in opposition to defendant's motion to dismiss, at 4 (Aug. 19, 1976).
It is the Court's view that plaintiff's position is supported neither by the plain meaning of the language of § 423(a)(4), nor by the pertinent legal authorities. As noted above, plaintiff took the pills in Arizona, suffered the reaction there, and was treated there. To allege that plaintiff's continuing pain shifts the site of the injury to this District would also mean that any jurisdiction to which plaintiff has travelled since she consumed the pills and which has a similar long-arm provision would be an appropriate forum for this lawsuit, for the continuing pain (the "injury" under plaintiff's reasoning) would have been felt in any such potential forum.
Plaintiff relies on the recent case of Aiken v. Lustine Chevrolet, Inc., 392 F. Supp. 883 (D.D.C. 1975), but that case, in this Court's view, is entirely distinguishable. In Aiken, plaintiff alleged that defendant's salesman falsely and fraudulently represented to her that she could purchase a new car from defendant with the right to return the car within ten days if she were not fully satisfied; when she attempted to do so, defendant refused to accept the car. She claimed that she was injured in that her credit rating was damaged and she suffered resultant harm to her mental and emotional well-being. District Judge Gasch ruled that the only place such injuries could have been maintained was where she lived, in the District. He warned, however, that in cases brought under § 423(a)(4), it is necessary to distinguish between "the injury suffered and any pecuniary losses, which are merely one measure of such an injury." Id. at 886. In the case at bar, in which the ...