Blinded Mexicans Can Pursue Claims in U.S.

(CN) - The 9th Circuit on Thursday revived a lawsuit brought by several elderly Mexicans who claim they lost their eyes or were blinded by a California company's tainted surgical materials.

While finding that a federal judge in Santa Ana, Calif., had properly dismissed the complaint and sent it to Mexico, the subsequent refusal of the Mexican courts to accept the case would "leave their horrific injuries wholly unredressed," the federal appeals panel in San Francisco ruled.

Eight elderly residents of Monterrey, Nuevo Leon, Mexico say they lost one of their eyes or were blinded in one eye after receiving cataract surgery from a well-qualified Mexican surgeon. They claim that they contracted bacterial endophthalmitis from a defective product manufactured by defendant Advanced Medical Optics.

The surgeons' use of Healon Viscoelastic product caused the plaintiffs' eyes to run with puss and gave them fevers, nausea and vomiting, according to their complaint. Three of the plaintiffs had to have an infected eye removed, while five others went blind in the infected eye.

"After the plaintiffs' surgical complications occurred, unopened batches of defendant's Healon product were tested and found to be infected with a virulent strain of bacteria that causes endophthalmitis," the ruling states.

The plaintiffs sued Advanced Medical Optics in California, where the company is based. The company successfully petitioned to have the case dismissed after arguing that the Mexican courts were a more convenient forum.

While appealing the District Court's dismissal, the plaintiffs also filed their complaint in Mexico. The Mexican courts refused to accept jurisdiction.

In ruling on the plaintiffs' appeal of the dismissal Thursday, the three-judge appeals panel admitted that the District Court had every right to send the case to Mexico. The panel refused to leave the case there, however, finding that doing so would leave the plaintiffs without a court to plead in.

"Here, to simply affirm the District Court without acknowledging that plaintiffs do not have a forum in which to bring their case would, apparently, be to leave their horrific injuries wholly unredressed," Judge Milan Smith wrote. "Similarly, other circuits have held that substantial changes in law or politics after the District Court's [forum] analysis may warrant revisiting its decision."

The panel said it was "persuaded by the reasoning of [its] sister circuits, and join[ed] them in holding that when intervening developments in a foreign jurisdiction, subsequent to a District Court's initial [forum] ruling, could leave plaintiffs without an available forum in which to bring their claims, it is appropriate to remand the matter back to the District Court so it can reconsider its decision based upon updated information," the ruling states.

Writing in partial dissent, Judge Johnnie Rawlinson cited the plaintiffs' "cloudy record" and alleged "shenanigans" while unsuccessfully pleading their case in Mexico.

"I disagree that it is prudent to remand a case where the remand essentially rewards a party who has sought remand on a cloudy record before a tribunal outside this country," he wrote. "There is no dispute that the District Court's decision dismissing the case was correct. There is considerable dispute regarding whether the dismissal in Mexico resulted from plaintiffs' shenanigans. I see no reason to disturb the district court's correct resolution of this case in view of the murky basis for the requested remand, especially considering our extremely narrow review of [forum] determinations."

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