The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, District Judge.
The plaintiff brings this case on the basis of product liability, medical negligence, civil conspiracy, and fraud, as the result of injuries she allegedly suffered from the use of a Dalkon Shield manufactured by A.H. Robins Company (Robins), and designed by Hugh J. Davis (Davis) and Irwin S. Lerner (Lerner). Also named as a defendant is G.D. Searle and Company (Searle) which manufactured a device commonly known as "Copper-7" which was used by the plaintiff for two weeks in 1976.
The case is now before the Court on Robins' motion to dismiss, or in the alternative, to transfer the case to the Eastern District of Missouri, Eastern Division, pursuant to 28 U.S.C. § 1406(a) (transfer where there is improper venue in the district where the case is filed), or 28 U.S.C. § 1404(a) (transfer where there is proper venue in the district where filed and transfer is made for the convenience of parties and witnesses), and on Searle's motion to dismiss for lack of personal jurisdiction and forum non conveniens. The defendants Davis and Lerner orally joined in the Robins' motion as did Searle, provided the Court does not grant its separate motion to dismiss on jurisdictional grounds. The Court heard arguments on September 23, 1982.
Very briefly, the underlying facts are as follows:
Plaintiff was born in St. Louis, Missouri, in 1951. In 1971 she married Larry E. LaBrier and they moved to Woodbridge, Virginia the same year, as Mr. LaBrier was on active military duty in the United States Navy. They lived in Woodbridge from July 1971 until June 1973 when they moved to Oxon Hill, Maryland, where they resided until April 1974. In mid-1974 they returned to Missouri where they presently reside.
Prior to her marriage, the plaintiff was treated generally by physicians in Missouri. The Dalkon Shield intrauterine contraceptive device (IUD) was allegedly inserted at the United States Navy Dispensary in Washington, D.C. on December 10, 1971 and was removed at the Dispensary on April 13, 1973, after the plaintiff complained of heavy bleeding upon menstruation and intermittent, vague pelvic pain, and expressed a desire to conceive a child.
In 1974, while using oral contraceptives, plaintiff experienced breakthrough bleeding and was treated by a physician in St. Louis, Missouri. In November 1975, plaintiff was admitted to a hospital in Missouri with a third trimester pregnancy complicated by a condition known as "placenta previa". The same month, she gave birth to a normal, healthy child, delivered by Caesarian section. In September 1976, a St. Louis physician inserted a "Copper-7" IUD in plaintiff at a clinic in Missouri. This IUD was removed shortly thereafter in October 1976 at the Emergency Room of a St. Louis hospital. Plaintiff was admitted to another St. Louis hospital two days later with a complaint later diagnosed as a ruptured right ectopic pregnancy in her right fallopian tube. Her right fallopian tube was removed as was an ovarian cyst from plaintiff's right ovary.
Plaintiff commenced use of a diaphragm in November 1976 and used it until she believed that she had become pregnant. She was admitted to a St. Louis hospital on December 30, 1976 complaining of pain. An exploratory laparotomy revealed an enlarged left fallopian tube as well as other problems. The tube was repaired and a cyst removed from her left ovary.
Plaintiff continued to experience a number of gynecological problems during 1977, 1978 and 1979, including a cyst in her right ovary and excessive uterine bleeding upon menstruation. Finally, she had a total abdominal hysterectomy in November 1979.
Plaintiff claims that seven events are associated with her use of ...