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HIV Claims Must Be Tried in Taiwan, Judges Rule

(CN) - Residents of Taiwan who claim that Baxter Healthcare Corporation knowingly distributed blood tainted with HIV will have to litigate the case in their own country, the 7th Circuit ruled.

The Chicago-based appellate panel upheld a district court's dismissal of a consolidated products-liability and breach of contract action brought by a group of Taiwanese hemophiliacs.

Plaintiffs, who originally filed the complaint in California, say they were infected with the virus that causes AIDS because Baxter failed to eliminate HIV from a "clotting factor" used by hemophiliacs around the world to control bleeding.

A multidistrict panel set up to handle a host of clotting factor lawsuits transferred the complaint to

to the district court in Chicago for pretrial proceedings, and the court dismissed some of the claims.

The plaintiffs argued that their claims arose in California, not Taiwan, because it was in California that Baxter failed to process the clotting factors in a way that would prevent contamination by HIV.

But there is "no tort without an injury," Judge Richard Posner wrote for the three-judge panel, and the injury of which the plaintiffs complain occurred in Taiwan.

"The main tort claim is that the defendants acquired blood from high-risk donors, processed it improperly in California where they manufactured clotting factors, and after discovering that the factors were contaminated by HIV nevertheless continued to distribute the product in foreign countries while withdrawing them from distribution in the United States," Posner wrote.

"Thus . . . the plaintiffs in this case, or the decedents whom they represent, reside, and obtained and injected the clotting factor, in a foreign country."

Posner adds that, by applying a "balancing of interests approach," a California court could "reason that if Taiwan will not provide a remedy to its own citizens, there is no reason for California to do so."

Moreover, any statute of limitations barriers that exist in Taiwan would also be present in California, Posner wrote.

The plaintiffs say they did not discover their claim until the New York Times published an article in 2003 about the tainted clotting agent.

However, the district court found that the plaintiffs had a reasonable basis to suspect that they had a cause of action more than five years before the article appeared, as they were already in negotiations with two of the defendants to settle negligence claims.

"A statute of repose, which is designed specifically for products-liability suits, cuts off liability after a fixed number of years, whether or not the plaintiff should have discovered within that period that he had a claim," Posner wrote.

He added that while greater convenience to the defendants is the only argument in favor of litigating the case in California rather than Taiwan, it is a weak argument at best.

As the defendants "don't want the case to be tried in California, or indeed anywhere else in the United States, really there is nothing in favor of the American forum."

Posner wrote, "convenience favors Taiwan and the statute of limitations applicable to this suit will be the same whether the case is tried there or in California."

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