Bhatnagar v. Surrendra Overseas Ltd.

Opinions of the United

1995 Decisions States Court of Appeals

for the Third Circuit

4-17-1995

Bhatnagar v Surrendra

Precedential or Non-Precedential:

Docket 93-2059

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 93-2059 and 93-2076

___________

URVASHI BHATNAGAR, an Infant by her Mother

and Natural Guardian, Kaplana Bhatnagar;

KAPLANA BHATNAGAR, Individually

vs.

SURRENDRA OVERSEAS LIMITED; APEEJAY LINES, in

personam; M.V. APJ KARAN, her engines,

boilers, tackle, etc. in rem

SURRENDRA OVERSEAS LIMITED, Claimant to

the Res; APEEJAY LINES, in personam and

the M/V APJ KARAN, her engines, boilers,

etc. in rem,

Appellants in No. 93-2059

URVASHI BHATNAGAR, an Infant by her Mother

and Natural Guardian, Kaplana Bhatnagar;

KAPLANA BHATNAGAR, Individually

vs.

SURRENDRA OVERSEAS LIMITED; APEEJAY LINES, in

personam; M.V. APJ KARAN, her engines,

boilers, tackle, etc. in rem

Urvashi Bhatnagar, an infant by her

Mother and Natural Guardian,

Kalpana Bhatnagar, and Kalpana

Bhatnagar, Individually,

Appellants in No. 93-2076

___________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 92-06321)

___________

ARGUED JULY 19, 1994

BEFORE: SCIRICA, LEWIS and ROSENN, Circuit Judges.

(Filed April 17, 1995)

___________

William G. Downey (ARGUED)

Michael D. Greenberg

Clark, Ladner, Fortenbaugh & Young

2005 Market Street

One Commerce Square, 22nd Floor

Philadelphia, PA 19103

Attorneys for Surrendra Overseas, Apeejay

Lines and M/V APJ Karan

Lenore E. McQuilling (ARGUED)

Harold Gordon

Kahn & Gordon, P.C.

30 Vesey Street, Suite 1400

New York, NY 10007

Attorneys for Urvashi Bhatnagar and Kalpana

Bhatnagar

___________

OPINION OF THE COURT

___________

LEWIS, Circuit Judge.

This case principally involves an issue of first

impression for this court: can extreme delay in an alternative

forum render that forum inadequate for purposes of assessing a

forum non conveniens motion? We answer that question in the

affirmative, and then address a number of issues arising from the

trial of this matter.

This case comes to us after final judgment in rem in

favor of plaintiff Urvashi Bhatnagar, a young female Indian

national, against Surrendra Overseas Ltd. ("Surrendra"), an

Indian shipping company, Apeejay Lines, an unincorporated

division of Surrendra,1 and the M/V APJ KARAN, an Indian vessel,

for injuries that Urvashi sustained aboard the APJ KARAN on the

high seas. In 1991, while six-year old Urvashi was playing a

"game" with one of the ship's crew on the bridge of the APJ

KARAN, her right hand and arm were severely lacerated when they

came in contact with a device used to repel water from the

windows of the bridge.

Urvashi and her mother, Kalpana, sued Surrendra in

federal court in New York under the court's admiralty

jurisdiction, then transferred the action to the Eastern District

of Pennsylvania. After discovery, Surrendra filed a series of

motions seeking to dismiss the complaint on the grounds of forum

non conveniens. The district court denied the motions, however,

1

. Surrendra states in its brief that ApeeJay "is not a legal

entity" (Appellant-Cross-Appellee's Br. 5), and in its answer to

the Bhatnagars' complaint, Surrendra alleged that "there is not a

separate corporation as ApeeJay Lines." Joint Appendix

("J.A.") 2. The Bhatnagars accept Surrendra's characterization

of ApeeJay. Appellees-Cross-Appellants' Br. 4. We treat

Surrendra, ApeeJay, and the APJ KARAN as one defendant for

purposes of this appeal.

and after a two-day bench trial during which the court purported

to apply Indian law, the court awarded Urvashi a total of

$189,331.00 in damages. Surrendra appeals the judgment, and

Urvashi and her mother cross-appeal. We will affirm in most

respects but will remand for a redetermination of damages under

Indian law.

I.

A.

The Bhatnagars are a family of Indian citizens. Sanjay

Bhatnagar, Urvashi's father, was hired in India as an assistant

engineer aboard the vessel APJ KARAN, one of eight vessels owned

and operated in international commerce by Surrendra. Sanjay

boarded the APJ KARAN in the Indian territory of Goa in November

1990. With Surrendra's permission, Sanjay's wife, son and

daughter were to join him on the vessel.

The family had planned to board the vessel in India

with Sanjay, but were unable to obtain the requisite visas. With

the Surrendra's assistance, however, Sanjay's wife Kalpana

Bhatnagar and her two children flew to the United States and

boarded the ship in Portland, Oregon, where the APJ KARAN took on

a cargo of grain destined for Alexandria, Egypt.

On board the APJ KARAN, rules and regulations

designated areas where unauthorized people were not allowed to

go. Notices were posted in several places indicating which areas

were off limits. For example, there was a sign posted at the top

of the stairs leading to the bridge which said "off limits," and

a sign posted outside the radio room which said "Navigators

Only." The captain of the APJ KARAN testified that he spoke with

Sanjay Bhatnagar and his family and instructed them not to enter

the restricted areas, and Sanjay also testified that he spoke

with his family concerning the areas they were not allowed to

visit.

Despite these rules, on March 17, 1991, the ship's

steward took Urvashi to the bridge -- an "off limits" area --

while he was serving tea to the duty officer. Once on the

bridge, the steward left Urvashi, and the six-year old approached

the helmsman. The helmsman picked her up and placed her upon a

railing facing the windows and a "clearview screen," a device

which repels rain and other moisture by revolving at a high rate

of speed. It was rainy that day, and the clearview screen

revolved rapidly to provide the helm with an unimpeded view of

the ocean ahead.

For some reason, the helmsman decided to show Urvashi

how to play a "game": he feigned putting his hand on the

clearview screen, then encouraged her to do the same. However,

when Urvashi followed the helmsman's lead her hand slipped, and

the clearview screen severely injured her right hand and portions

of her arm.

The APJ KARAN was steaming in international waters when

the accident occurred. The captain immediately radioed for help

and was transferred to the United States Coast Guard, which

directed the captain to divert the vessel to the nearest

landfall. That turned out to be the island of Antigua, and

Urvashi, her brother and her mother were evacuated there.

After receiving emergency medical treatment on Antigua,

on March 20, 1991 Urvashi and her mother and brother flew to New

York, where their relatives, who are doctors, arranged for

further medical assistance. The three Bhatnagars (later joined

by Sanjay) entered the United States on emergency medical visas

valid for six months.

Despite the expiration of their emergency medical

visas in September 1991, the Bhatnagars have remained in New York

living with relatives since the accident. Urvashi has undergone

therapy for her wounds and has attended school in West Islip, New

York. In all, Urvashi had a series of six operations from March

1991 through May 1992 to repair her hand.

B.

Urvashi and Kalpana Bhatnagar brought suit in September

1992 against Surrendra, ApeeJay Lines, and the APJ KARAN in the

United States District Court for the Southern District of New

York. Urvashi alleged negligence, lack of adequate medical care

and gross negligence, and Kalpana claimed loss of services

resulting from the injuries to her daughter. When the APJ KARAN

was docked at the Port of Philadelphia in October 1992, however,

the plaintiffs transferred the case to the United States District

Court for the Eastern District of Pennsylvania, and Surrendra

issued to the plaintiffs a letter of undertaking of $2 million in

lieu of the vessel's arrest and detention in Philadelphia.

After substantial discovery, Surrendra moved to dismiss

the Bhatnagar's complaint on the ground that it was barred by the

forum selection clause in Sanjay Bhatnagar's employment contract2

or, alternatively, that the district court should exercise its

discretion and dismiss the case under the doctrine of forum non

conveniens. The district court denied the initial motion, denied

Surrendra's motion for reconsideration or certification of the

forum non conveniens ruling under Fed. R. Civ. P. 54(b), and also

denied a second motion for reconsideration filed after further

discovery. Thus, the case went to trial.

The district court, after a bench trial in which it

purported to apply Indian law, awarded Urvashi $33,133 in

pecuniary damages for past medical expenses, $6,000 for future

medical expenses, and $150,000 for pain and suffering,

disability, disfigurement, loss of enjoyment of life, mental

anguish and emotional injury. The court ruled in favor of

Surrendra on Kalpana Bhatnagar's claims, finding that she had not

proven any loss of service or psychiatric injury as a result of

Urvashi's injuries.

Surrendra appeals the denial of the district court's

rulings with respect to forum non conveniens and also contends

that the district court made numerous errors at trial. Urvashi

and Kalpana Bhatnagar cross-appeal the adequacy of the judgment

in favor of Urvashi and also challenge the district court's

judgment in favor of Surrendra on Kalpana Bhatnagar's claims.

The district court had jurisdiction pursuant to 28 U.S.C. § 1333.

We have jurisdiction under 28 U.S.C. § 1291.

2

. This ground is not pressed by Surrendra on appeal.

II.

Surrendra makes three claims of error: (1) the

district court abused its discretion when it failed to dismiss

the case under the doctrine of forum non conveniens; (2) the

court erred in imposing liability upon Surrendra; and (3) the

court erroneously calculated Urvashi's damages. We address each

of these issues in turn.

A.

It is undisputed that the parties in this case are

Indian nationals and the ship on which Urvashi's accident

occurred was an Indian-flagged ship on the high seas. Before the

district court rejected Surrendra's motion to dismiss on the

grounds of forum non conveniens and proceeded to trial, the only

links with the United States present in this case were the

following: (1) the Bhatnagars claim residence in the United

States; (2) Urvashi was treated in the United States by doctors

who were therefore available here to testify about the nature and

extent of her injuries; and (3) the Bhatnagars were able to

secure a letter of undertaking by Surrendra in the United States

-- after the suit was filed -- when the APJ KARAN dropped anchor

in the Port of Philadelphia.

Given these circumstances, it is hardly surprising that

Surrendra argued to the district court that this case should be

heard in India, rather than the United States. Surrendra

contended that the case had a close factual nexus with India and

an absence of ties to the United States. The company also

submitted an affidavit of an Indian law expert noting that India

has a well-developed legal system which would be able to handle

the issues presented in this case. Furthermore, although in

effect conceding that the Indian legal system moves much less

expeditiously than our domestic courts, Surrendra submitted

another affidavit stating that if the case were refiled in India,

it would join in petitioning the appropriate judicial officer for

expedited hearing of the matter, and that it would not file any

unnecessary pleadings or requests that would impede the case.

Surrendra's legal expert, moreover, opined that because of

Urvashi's young age, the Calcutta High Court (which would hear

the case) "would undoubtedly grant an `expedited hearing'

request" if the parties made such a motion. Joint Appendix

("J.A.") 240. Despite Surrendra's arguments, however, the

district court refused to dismiss.

Surrendra complains that the district court abused its

discretion not only when it failed to grant this original motion,

but also when it rejected Surrendra's motion for reconsideration

and, later, rejected a second motion seeking reconsideration

because of alleged discovery abuses by the Bhatnagars. We

conclude that none of Surrendra's contentions has merit.

1.

A district court's determination with respect to forum

non conveniens "may be reversed only when there has been a clear

abuse of discretion; where the court has considered all relevant

public and private interest factors, and where its balancing of

these factors is reasonable, its decision deserves substantial

deference." Lacey v. Cessna Aircraft Co., 932 F.2d 170, 178 (3d

Cir. 1991) (Lacey II), quoting Piper Aircraft Co. v. Reyno, 454

U.S. 235, 257 (1981). Certainly, our case law demands that we

accord deference even to a trial court's decision to refuse to

exercise its lawful jurisdiction, dismiss on grounds of forum non

conveniens and deny the plaintiff the opportunity to litigate in

a United States court. Our deference should be at least as

great, if not greater, when a district court decides not to

dismiss.3 The district court is capable of measuring its own

3

. A rough suggestion of the deference accorded district court

decisions rejecting motions to dismiss on the ground of forum non

conveniens is found in the case law: while hundreds of forum non

conveniens decisions have been reported over the years, one

article concluded that, as of March 1991, only six reported

decisions involved pretrial decisions not to dismiss. See Note,

Review and Appeal of Forum Non Conveniens and Venue Transfer

Orders, 59 Geo. Wash. L. Rev. 715 at 727-28 (1991). "Only once

did an appellate court reverse the denial of a motion to dismiss

for forum non conveniens." Id. at 728 (footnotes omitted). That

case was Gonzalez v. Naviera Neptuno A.A., 832 F.2d 876 (5th Cir.

1987), a case very different from the one before us. In

Gonzalez, "the overwhelming majority" of the witnesses were in

the alternative jurisdiction, and the Fifth Circuit found there

would be difficulties in enforcing a judgment against the

defendant in the United States. Gonzalez, 832 F.2d at 879.

Here, by contrast, Urvashi and her mother, as well as Urvashi's

treating physician, were present in the United States, and the

letter of undertaking would make it possible to enforce a

judgment against Surrendra in the United States. Even more

importantly, in Gonzalez there was no issue of whether the

alternative forum in that case (Peru) was adequate. As noted

infra pp. 15-23, here that issue is dispositive.

docket and assessing the practical administrative difficulties

that may flow from denying such a motion. Indeed, while we may

be able to provide some perspective on the systemic consequences

of individual denials of forum non conveniens motions -- in terms

of future case load and other administrative difficulties that

may result -- we are aware of no evidence suggesting that

district courts are unable similarly to take the long view of a

particular situation. To the contrary, we believe that district

courts are well aware of the caseload pressures they face and

rather zealous in their efforts to control their ever-burgeoning

responsibilities. Given the incentives that press our district

courts to reduce their caseload, we should take particular care

before second-guessing a district court that rejects a forum non

conveniens motion after considering the factors that we and the

Supreme Court have deemed relevant.

The factors to be evaluated in assessing whether to

dismiss for forum non conveniens are by now familiar. First --

and of dispositive significance here -- a district court cannot

dismiss on forum non conveniens grounds if that decision would

render a plaintiff unable to pursue his or her action elsewhere.

That is, since a district court entertaining a forum non

conveniens motion has jurisdiction over the dispute, it is only

when some other forum that would also have jurisdiction is better

suited to adjudicate the controversy that a district court may

exercise its discretion and dismiss the case. See Gulf Oil Corp.

v. Gilbert, 330 U.S. 501, 506-07 (1947) ("In all cases in which

the doctrine of forum non conveniens comes into play, it

presupposes at least two forums in which the defendant is

amenable to process; the doctrine furnishes criteria for choice

between them"). Thus, as we explained in Lacey v. Cessna

Aircraft Co., 862 F.2d 38 (3d Cir. 1988) (Lacey I), at the outset

of its analysis, "[a] district court entertaining a forum non

conveniens motion must first decide whether an adequate

alternative forum exists to hear the case." Id. at 43.

Provided that an adequate alternative forum is

available, the district court must address an additional

threshold issue when the case is brought by a foreigner --

namely, the amount of weight that should be accorded to the

plaintiff's decision to sue in the United States.4 Then, "the

district court must consider and balance several private and

4

. Ordinarily, a plaintiff's choice of forum is entitled to

great deference, but the amount of deference is lessened when a

foreigner has brought suit because we are more skeptical of a

foreigner's claim that a United States forum is in fact the most

convenient forum available. Piper Aircraft Co. v. Reyno, 454

U.S. 235, 255 (1981). The fact that a plaintiff is a foreigner

does not disqualify him or her from suing in the courts of the

United States, nor does it mean that his or her decision to sue

in the United States is entitled to no deference. "Piper[

Aircraft]'s language about according less deference to a foreign

plaintiff's forum choice is `not an invitation to accord a

foreign plaintiff's selection of an American forum no deference

since dismissal for forum non conveniens is the exception rather

than the rule.'" Lacey v. Cessna Aircraft Co., 862 F.2d 38,

45-46 (3d Cir. 1988) (Lacey I), quoting and adding emphasis to In

re Air Crash Disaster Near New Orleans, Louisiana on July 9,

1982, 821 F.2d 1147, 1164 n.26 (5th Cir. 1987). Although we have

acknowledged that the deference evaluation cannot be done with

mathematical precision, the district court must provide some

reasoned indication of how much deference it is according to the

particular foreign plaintiff's decision to sue in the United

States. Lacey v. Cessna Aircraft Co., 932 F.2d 170, 179 (3d Cir.

1991) (Lacey II).

public interest factors that are relevant to the forum non

conveniens determination." Lacey I, 862 F.2d at 43.5 It is the

defendant's burden to demonstrate that forum non conveniens

dismissal is warranted. E.g., Lacey I, 862 F.2d at 43-44; Gulf

Oil, 330 U.S. at 508. Surrendra failed to carry that burden

because it did not make its threshold demonstration that an

adequate alternative forum was available for this litigation.

The Bhatnagars argued in the district court that India

did not constitute an adequate alternative forum because its

court system was in a state of virtual collapse. Plaintiffs

submitted affidavits from Marc S. Galanter and Shardul Shroff in

5

. Certain of these factors were identified in Gulf Oil Corp.

v. Gilbert, 330 U.S.501 (1947). The private interest factors

include such considerations as "the relative ease of access to

sources of proof; availability of compulsory process for

attendance of unwilling, and the cost of obtaining attendance of

willing, witnesses; possibility of view of premises, if view

would be appropriate to the action," and other factors "that make

trial of a case easy, expeditious and inexpensive." Id. at 508.

With respect to the public interest factors, the Supreme

Court has noted that courts should be wary of increasing the

congestion in domestic courts and forcing jury duty upon those

who have no relation to or interest in a particular controversy.

Gulf Oil, 330 U.S. at 508-09. Additionally, courts should prefer

to have cases adjudicated in the forum familiar with the law to

be applied, instead of taking it upon themselves to become

educated about foreign law. Id. at 509. We have further

explained that "[i]n evaluating the public interest factors the

district court must `consider the locus of the alleged culpable

conduct, often a disputed issue, and the connection of that

conduct to plaintiff's chosen forum.'" Lacey I, 862 F.2d at 48,

quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 528 (1988).

The Supreme Court has cautioned, however, that the list of

public and private factors in Gulf Oil "is by no means

exhaustive, and some factors may not be relevant in the context

of a particular case." Van Cauwenberghe, 486 U.S. at 528-29.

support of this contention (respectively, the "Galanter Aff." and

the "Shroff Aff."). Surrendra responded by proffering the

affidavit of Talat M. Ansari, who stated that there are numerous

ways in which litigation can be expedited in India, including

appointment of special judges, intervention by the Supreme Court

of India or State High Court, or even requests by the parties for

expedition. J.A. 240. Furthermore, Ansari stated that "given

the tender age of the child, the Calcutta High Court (which would

be the court in which the action would have to be filed, given

the amount of compensation claimed) would undoubtedly grant an

`expedited hearing' request." Id. Surrendra also offered the

affidavit of Captain Khosla, the company's General Manager, who

promised that if the district court dismissed this case Surrendra

would cooperate in seeking expedited treatment of any suit

brought by the Bhatnagars in India.

The district court agreed with the Bhatnagars.

Crediting their legal experts, the court found that the Indian

legal system has a tremendous backlog of cases -- so great that

it could take up to a quarter of a century to resolve this

litigation if it were filed in India. J.A. 15-16. Finding that

"this remedy is inadequate and unsatisfactory," the court ruled

that dismissal was inappropriate. Id at 17.6

6

. Although the district court also evaluated the Bhatnagars'

case under the private and public interest factors of Gulf Oil,

we do not reach that analysis because of our affirmance on the

threshold issue of whether an alternative forum is available.

Surrendra contends on appeal that this analysis

constituted an abuse of discretion for two central reasons. The

company contends that the district court committed legal error in

finding that mere litigation delay can render an alternative

forum inadequate, and that in any event the court's fact-finding

with respect to delay in the Indian legal system was clearly

erroneous. We disagree.

(a)

Surrendra's first attack focuses on the court's premise

that litigation backlog can render an alternative forum

inadequate for purposes of forum non conveniens analysis.

Surrendra argues that the alternative forum factor may be used to

deny a motion to dismiss only in "extreme cases, such as where an

action is barred by an alternative forum . . . ." Appellant-

Cross-Appellee's Br. 14. Quoting Piper Aircraft, Surrendra

contends that unless "the remedy provided by the alternative

forum is so clearly inadequate or unsatisfactory that it is no

remedy at all" (Piper Aircraft, 454 U.S. at 254), the alternative

forum must be deemed to be adequate. Appellant-Cross-Appellee's

Br. 14. Thus, although Surrendra does not say so in as many

words, it apparently believes that the district court committed

legal error in finding that mere delay can render the Indian

court system inadequate for purposes of a forum non conveniens

inquiry.

The Supreme Court in Piper Aircraft stated that the

alternative forum requirement "[o]rdinarily . . . will be

satisfied when the defendant is `amenable to process' in the

other jurisdiction." Piper Aircraft, 454 U.S. at 254 n.22,

quoting Gulf Oil, 330 U.S. at 506-07. Yet the Court qualified

this statement:

In rare circumstances, however, where the

remedy offered by the other forum is clearly

unsatisfactory, the other forum may not be an

adequate alternative, and the initial

requirement may not be satisfied. Thus, for

example, dismissal would not be appropriate

where the alternative forum does not permit

litigation of the subject matter of the

dispute.

Id. (emphasis added).

We have never addressed the issue of whether litigation

delay could render an alternative forum so "clearly

unsatisfactory" as to be inadequate. Nor has the Supreme Court

or any of our sister circuits. Thus, we face an issue of first

impression.

At the outset of this discussion, it is necessary to

recognize that delay is an unfortunate but ubiquitous aspect of

the legal process. Our own courts suffer from delay, as does any

other system that attempts to accord some modicum of process.

E.g., Rosewell v. LaSalle Nat'l Bank, 450 U.S. 503, 519-20 (1981)

(noting that delay is pervasive aspect of American courts); see

also Report of the Federal Courts Study Committee 5-6 (Apr. 2,

1990). Because litigation delay is so pervasive, minor delay

could not possibly serve to undermine the adequacy of an

alternative forum. Thus, we agree with those courts that have

found delays of a few years to be of no legal significance in the

forum non conveniens calculus. E.g., Brazilian Investment

Advisory Services, Ltda. v. United Merchants & Manufacturing,

Inc., 667 F. Supp. 136, 138 (S.D. N.Y. 1987) (delay of up to two

and one-half years); Broadcasting Rights Int'l Corp. v. Societe

du Tour de France, S.A.R.L., 708 F. Supp. 83, 85 (S.D. N.Y. 1989)

(delay of at least two years "and possibly longer").

At some point, however, the prospect of judicial remedy

becomes so temporally remote that it is no remedy at all.

Thus, in a variety of circumstances, we and other courts have

recognized that delay can, in extreme cases, render meaningless a

putative remedy. This principle has been recognized, for

example, in the context of habeas corpus law. In Burkett v.

Cunningham, 826 F.2d 1208 (3d Cir. 1987), we excused a state

prisoner's failure to exhaust his state-law remedies before

seeking federal habeas corpus relief on the ground that he had

suffered five and one-half years of delay in attempting to

vindicate himself in state court. Such delay, we found, "as a

matter of law excuses exhaustion" (id. at 1218), and we

reiterated the well-worn but nevertheless truthful aphorism that

"justice delayed is justice denied" (id.). The same result has

obtained in our sister circuits. E.g., Simmons v. Reynolds, 898

F.2d 865 (2d Cir. 1990) (six-year delay in state appeal excused

exhaustion requirement in federal habeas action); Harris v.

Champion, 938 F.2d 1062 (10th Cir. 1991) (four-year delay before

briefing of prisoner's state appeal and indeterminate amount of

time before appeal would be decided); Coe v. Thurman, 922 F.2d

528 (9th Cir. 1990) (three-year delay).

Similarly, it is well established in administrative law

that excessive delay may, in some circumstances, excuse

exhaustion requirements. E.g., McCarthy v. Madigan, 503 U.S.

140, 147 (1992); Coit Independence Joint Venture v. FSLIC, 489

U.S. 561, 587 (1989); Gibson v. Berryhill, 411 U.S. 564, 575 n.14

(1973). Although part of the concern voiced in such cases

undoubtedly stems from the possibility that a litigant's

subsequent court action may be prejudiced by undue postponement,

courts have also recognized the fundamental principle that a

remedy too long delayed is tantamount to no remedy at all. E.g.,

Smith v. Illinois Bell Telephone Co., 270 U.S. 587, 591 (1926)

("[p]roperty may be as effectively taken by long-continued and

unreasonable delay in putting an end to confiscatory rates as by

an express affirmance of them").

Returning to the facts at hand with these legal

principles in mind, the delay in the Indian legal system

described by plaintiffs' experts in this case is much more than

mere minor delay of the sort long tolerated, albeit ruefully, in

courts of justice. To the contrary, the delay described by the

Bhatnagars' experts is profound and extreme. J.A. 41, 55-65

(Galanter Aff., characterizing Indian legal system as having

delays of "Bleak House dimensions"); J.A. 1368, 1374 (Shroff

Aff., quoting former Chief Justice of India as saying that Indian

legal system is "almost on the verge of collapse"). The district

court explained that, "[i]f this case is an `average' case,

Calcutta's High Court would take 15-20 years to resolve it.

Shroff Aff., p. 7. However, the case would also be subject to

another three to six years of appeals after that." J.A. 16.

Thus, "[i]f this case were to proceed in the Indian court system

it might not be resolved until [Urvashi] is an adult." J.A. 17.

Wherever the line might be drawn separating tolerable

delay from intolerable -- that is, delay that does not vitiate a

remedy and that which does -- delays of up to a quarter of a

century fall on the intolerable side of that line. Delays of

such egregious magnitude would render a remedy "clearly

inadequate" under Piper Aircraft. Thus, we agree with the

district court that delay of the magnitude described in the

Bhatnagars' experts' affidavits can render an alternative forum

inadequate as a matter of law.

(b)

Surrendra also argues, however, that regardless of

whether delay of such proportions can render an alternative forum

inadequate, the district court's fact-finding concerning delay in

India was fatally flawed in this case. Specifically, Surrendra

contends that the district court credited without question the

plaintiffs' Shroff Affidavit, while ignoring Surrendra's

affidavits from Ansari and Khosla. Appellant-Cross-Appellee's

Br. 14-15. However, keeping in mind that it was Surrendra's

burden to prove that India was a viable alternative forum, the

company's arguments are unpersuasive.

Contrary to Surrendra's contention that the district

court "unquestioningly" accepted the Shroff affidavit, the record

reflects that the district court relied on both the Shroff and

Galanter affidavits in making its fact-finding. J.A. 15 (citing

both Shroff Aff. and Galanter Aff.). Additionally, despite

Surrendra's complaints about the district court's reliance on

plaintiffs' experts' affidavits, the company fails to provide a

single reason why the Galanter and Shroff affidavits were not

worthy of credence. Thus, Surrendra's indictment of the district

court's reliance on the Bhatnagars' evidence amounts to a

plaintive assertion that "my experts were better."

In addition to failing to undermine the credibility of

the Bhatnagars' affiants, however, Surrendra also failed to

counter effectively the Bhatnagars' affidavits with evidence of

its own demonstrating that the delays in India's legal system

either were not present or would not make a suit by the

Bhatnagars in India an exercise in futility. Surrendra's expert,

Ansari, stated that there are ways that parties may expedite

litigation in India, but with one exception he did not state that

any of the methods he listed would in fact lead to expedited

treatment of a suit filed by the Bhatnagars. The sole exception

was his assertion that the Calcutta High Court "would undoubtedly

grant an `expedited hearing' request" in Urvashi's case "given

the tender age of the child . . . ." J.A. 240. Evidently, the

district court did not believe Ansari, because it held that the

Bhatnagars' suit was "an average case which would probably not

receive expedited treatment." J.A. 16.

We do not believe this ruling was clearly erroneous.

Ansari cited no legal authority for his hopeful pronouncement,

whereas plaintiffs' experts, Galanter and Shroff, provided both

statistical and anecdotal evidence documenting litigation delays

and tending to show that a suit like the Bhatnagars' would likely

not receive expedited treatment.7

Turning to the Khosla affidavit, the company contends

that the court "ignored" this evidence, but that also is simply

not true. Khosla stated that if the Bhatnagars' suit were

brought in India, Surrendra would cooperate in seeking expedited

treatment of the matter and would not take actions that would

unnecessarily interfere with swift resolution of the case. He

also stated that if Surrendra failed to meet his promises, the

company agreed that the district court could reassume

jurisdiction over the case. As Surrendra is forced to concede

(Appellant-Cross-Appellee's Br. 16), however, the district court

acknowledged on the record that it had reviewed the Khosla

affidavit and "recognize[d] that the defendants would not delay

and would cooperate in requesting the Court to hear the matter

expeditiously" in India (J.A. 285). The court was unpersuaded by

this evidence, noting that even though Surrendra had promised to

cooperate, "there's nothing that gives me comfort that the matter

would be heard in India within a reasonable time." J.A. 285. It

7

. See Galanter Aff., J.A. 60-63 (noting backlog); id. 63-65

(average duration of reported tort suits 1975-84 was 12 years and

nine months); id. 68-70 (results of Bhopal litigation "gives

little reason to believe that the Indian courts presently afford

an adequate forum for an ordinary personal injury case like this

one"); Shroff Aff., J.A. 1375 (stating that if suit were filed in

Calcutta High Court it would "normally" take "about 15-20 years

before it is finally disposed of since, at present, there are

only two judges who are singly hearing suits and proceedings for

final disposal"); id. (quoting retired Chief Justice of India in

1985 speech as noting that "[t]he delay in the disposal of cases

has affected not only the ordinary type of cases but also those

which, by their very nature, call for early relief").

is clear from the record, therefore, that far from "ignoring" the

Khosla affidavit, the district court concluded that Surrendra's

promise to cooperate in trying to expedite litigation in India

did not amount to proof that the litigation would avoid the

unreasonable delays that plaintiffs' experts said were endemic in

that judicial system. Thus, it was not clearly erroneous for the

district court to decide that India was not an adequate

alternative forum based on the evidence before it.

(c)

Surrendra contends that "[e]very other court which has

considered this issue has found that India courts do provide an

adequate alternative forum in the forum non conveniens context."

Appellant-Cross-Appellee's Br. 17. Even if that were so, it

would be irrelevant to the issue of whether Surrendra met its

burden of proof on the issue here. We note, however, that the

cases relied upon by Surrendra are factually distinguishable. In

In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in

Dec., 1984, 809 F.2d 195 (2d Cir. 1987), the court merely found

that the district court's finding that India was a reasonably

adequate alternative forum did not constitute clear error. Id.

at 202-03. Significantly, the district court in that case had

found that India was an adequate alternative forum only because

it expected that the Indian Government would not treat the

litigation arising from the Bhopal tragedy "in ordinary fashion,"

given that it was the "most significant, urgent and extensive

litigation ever to arise from a single event . . . ." In re

Union Carbide Corp. Gas Plant Disaster at Bhopal, India in

December, 1984, 634 F. Supp. 842, 848 (S.D. N.Y. 1986).8

8

. In the only other case cited by Surrendra which

specifically addressed litigation delay in India, the court noted

that the plaintiff's evidence of delay consisted of "one

newspaper article, which includes anecdotal references to

congestion in Indian courts." Chhawchharia v. Boeing Co., 657 F.

Supp. 1157, 1160 (S.D. N.Y. 1987). Such meager support is

nowhere near as extensive as the evidence submitted by the

Bhatnagars in this case. Furthermore, in both Chhawchharia and

R. Maganlal & Co. v. M.G. Chemical Co., Inc., No. 88 Civ. 4896

(MJL), 1990 WL 200621 (S.D. N.Y. 1990), also cited by Surrendra,

the district courts relied upon In re Union Carbide Corp. Gas

Plant Disaster, 809 F.2d 195 (2d Cir. 1987), for the proposition

(d)

(..continued)

that India provided an adequate alternative forum. As noted in

the text, relying on that case for that proposition is at least

misleading, given the special circumstances of the Bhopal

disaster litigation and the other significant factors that formed

the basis of the decision. Surrendra's other putative precedents

are similarly unpersuasive. There is no suggestion that the

issue of delay was briefed in Neo Sack, Ltd. v. Vinmar Impex,

Inc., 810 F. Supp. 829 (S.D. Tex. 1993), or Vaz v. United States

Surgical Corp., No. B-90-328 (WWE), 1991 WL 47341 (D. Conn.

March 13, 1991), neither of which expended any significant effort

in determining the adequacy of India's legal system as an

alternative to litigation in the United States. Surrendra also

cites ETPM v. Noble Drilling Corp., No. H-92-0682 (S.D. Tex.

Jan. 12, 1993), but does not even provide us with a copy of the

case, so that we could not rely upon it even if we were disposed

to credit an unpublished and unreported district court decision

from another circuit.

We should not be read to conclude that the courts of

India are always inadequate fora, making forum non conveniens

dismissal inappropriate whenever an Indian national sues in the

United States. That is neither the thrust nor the end point of

our analysis. In reaching its conclusion that India was an

inadequate alternative forum in this case, the district court was

essentially concluding that Surrendra had not met its burden of

proof on that threshold issue. We agree.9 It may well be that

the next defendant to face the same issue faced by Surrendra

would reach a different result because it would marshal more --

or better -- proof. Furthermore, another district court

presented with the same raw evidence might reach different

factual conclusions, and we might be constrained under our

lenient standards of review to affirm in that case, as well.

Here, however, the district court did not commit legal error in

concluding that delay can render a putative alternative forum

clearly inadequate. Nor did it commit clear error in its factual

findings relating to the issue of delay. That being so, we are

constrained to affirm the district court's exercise of discretion

9

. While defending the district court's finding that India is

an inadequate alternative to the United States because of the

delays endemic in the Indian legal system, on appeal the

Bhatnagars also argue that we can affirm the district court's

finding in this respect on an alternative ground. According to

the Bhatnagars, their claims are now time-barred in India; thus,

they argue, "the court [sic] in India cannot hear the case since

the statute of limitations has expired and cannot be waived."

Appellees-Cross-Appellants' Br. 10. Because we have found that

the district court did not abuse its discretion in ruling that

India was an inadequate forum based on the evidence of delay

presented to that court, we do not reach the Bhatnagars' statute

of limitations argument.

under which it retained jurisdiction over this case and

adjudicated the Bhatnagars' claims.

2.

Ten days after losing the forum non conveniens motion,

Surrendra submitted a motion for reconsideration which included

the unsworn declaration of Shri Venkiteswaran pursuant to 28

U.S.C. § 1746. J.A. 289.10 Venkiteswaran agreed with the

plaintiffs' experts on Indian law that "if no order for

expedition is made there could be" significant delay -- "anywhere

between 10 and 12 years in Bombay and about 10 to 15 years in

Calcutta" -- before the Bhatnagars' claims were resolved. J.A.

292. However, Venkiteswaran disagreed with Surrendra's own

original India law expert (Ansari) as well as both of plaintiffs'

experts by stating that, contrary to the assumptions of those

experts, the Bhatnagars' case could be adjudicated in India as an

admiralty case. Id. Treating the suit as an admiralty action,

Venkiteswaran stated, would reduce the delay to "4 to 5 years if

the plaintiffs pursue their action diligently and if the

defendants are not obstructive in having the matter heard." Id.

In its motion for reconsideration, Surrendra argued that the

Venkiteswaran affidavit demonstrated that the court had erred in

finding that India was an inadequate forum, and that the court

had abused its discretion in evaluating the public and private

interest factors implicated by the case. Alternatively,

10

. 28 U.S.C. § 1746 permits parties to submit unsworn

declarations in lieu of sworn statements in certain

circumstances.

Surrendra requested that the district court certify the forum non

conveniens issue for immediate review. The district court denied

this motion without a written opinion, noting in its order that

"[t]he court considered the factors mentioned in the Motion in

reaching its original conclusion." J.A. 22.

Surrendra contends on appeal that the district court

abused its discretion in failing to change its mind and dismiss

this case on forum non conveniens grounds in the face of

Surrendra's new evidence.11 We disagree for two reasons. First,

Surrendra's motion for reconsideration strikes us as a classic

attempt at a "second bite at the apple." Having failed in its

first effort to persuade the court to dismiss on forum non

conveniens grounds, Surrendra simply changed theories and tried

again, contradicting its earlier evidence with its factual

support for the new theory. We have explained that although we

are not "prepared to enunciate a rule precluding [a] district

court from reconsidering the issue" of forum non conveniens "on

an expanded record in all circumstances," nevertheless we "assume

that such reconsideration [will] be limited to exceptional

circumstances." Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d

604, 608 (3d Cir. 1991). Whatever other circumstances may

11

. In its brief, Surrendra also suggests that, in the

alternative, the district court should have granted the company's

request for interlocutory review of the forum non conveniens

decision under Fed. R. Civ. P. 54(b). Appellant-Cross-Appellee's

Br. 18 n.1. The company does not appeal the denial of

certification, however, so we need not address the knotty

question of whether we could take jurisdiction over a denial of

Rule 54(b) certification. See Republic of the Philippines v.

Westinghouse Elec. Corp., 43 F.3d 65, 81 (3d Cir. 1994).

justify reconsideration, mere presentation of arguments or

evidence seriatim does not. See Brambles USA, Inc. v. Blocker,

735 F. Supp. 1239, 1240 (D. Del. 1990) (reargument "should not be

used as a means to argue new facts or issues that inexcusably

were not presented to the court in the matter previously

decided").

In any event, the district court was entitled to

disbelieve the Venkiteswaran declaration. Venkiteswaran

contradicted the Ansari affidavit, which -- according to

Surrendra in its earlier papers -- had accurately stated the law.

Thus, the district court may reasonably have concluded that the

putative new "expert" testimony was of no evidentiary value.

Furthermore, Venkiteswaran provided the district court with no

citation to legal authority suggesting that his conclusion that

the Bhatnagars could bring an admiralty action in India was

entitled to any weight. Given the incompatibility of his

testimony with that of Ansari and the Bhatnagars' experts, the

district court may reasonably have concluded that it should not

credit the newly proffered opinion. We cannot conclude that the

district court abused its discretion in denying the motion for

reconsideration.

3.

After denial of the motion for reconsideration,

discovery proceeded apace for another two and one-half months.

Then, on the day after the Bhatnagars' trial brief was submitted,

Surrendra filed a Motion for Relief from the Order Denying

Claimant's Motion to Dismiss on Grounds of Forum Non Conveniens.

See J.A. 9. In this motion, Surrendra again contended that the

district court should reconsider the motion to dismiss. This

time, Surrendra premised its request for relief on allegations

that the Bhatnagars, in a wilful abuse of discovery, had

misrepresented their immigration status to Surrendra and the

court. In fact, Surrendra contended, the Bhatnagars had been

illegal aliens when they first brought their action in

Pennsylvania. Had the Bhatnagars not wilfully misrepresented

their immigration status to the court, the company claimed, the

court would have granted the forum non conveniens motion because

the withheld information would have negated the court's findings

of fact -- namely, that Urvashi intended to reside in the United

States until all medical treatment was completed and that she

sought to remain permanently in the United States, if permitted.

Surrendra apparently also contended that the motion to dismiss

should be reconsidered and granted as a sanction for the

Bhatnagars' bad faith during discovery.

The district court rejected this third bite at the

apple, noting that this case was "not an immigration appeal."

J.A. 26. Furthermore, although the court stated that the

"court's role is not to determine . . . whether the plaintiffs

reside here legally," the court explained that it had "considered

the possibility that the minor plaintiff could be deported" at

the hearing on Surrendra's initial motion to dismiss. Id.

(Indeed, the court had done so, apparently aware at that time

that the plaintiffs were potentially residing in the United

States illegally. J.A. 272.) Additionally, relying on Hagl v.

Jacob Stern & Sons, Inc., 396 F. Supp. 779, 784 (E.D. Pa. 1975),

the court ruled that "even if the minor plaintiff is an illegal

alien, she still has the right to use this country's courts to

sue those persons who allegedly physically injured her."

J.A. 26.

The district court did not abuse its discretion in

denying this second motion for reconsideration, which amounted to

a third motion to dismiss on the ground of forum non conveniens,

and which asserted grounds already briefed to the district court.

Reconsideration "should not be granted where it would merely

`allow wasteful repetition of arguments already briefed,

considered and decided.'" Brambles USA, 735 F. Supp. at 1240,

quoting Weissman v. Fruchtman, 124 F.R.D. 559, 560 (S.D. N.Y.

1989). Furthermore, despite Surrendra's protestations of bad

faith and lack of candor by the Bhatnagars, the evidence does not

compel the conclusion that the Bhatnagars acted with bad faith,

and the district court found no such bad faith. In short,

Surrendra has provided no reason to upset the district court's

discretionary decision to deny this final motion for

reconsideration.

B.

Turning to the merits of the trial, Surrendra next

contends that the court erred in finding the company negligent

under Indian law.12 Surrendra's challenge takes two forms.

First, the company alleges that the court erred in finding that

liability could be imposed upon the company on the ground that

Surrendra's duty officer should have known of Urvashi's presence

on the bridge at the time of the accident. Alternatively,

Surrendra argues that the court erred in denying Surrendra's

motion for a directed verdict on the ground that there was

insufficient evidence either that Surrendra's steward and

helmsman had acted within the scope of their employment or that

the duty officer had become aware of Urvashi's presence on the

bridge. Surrendra's arguments, however, leave us unpersuaded.

12

. In their cross-appeal, the Bhatnagars contend that the

district court erred in concluding that Indian law applied. They

reason that because Indian and American law are essentially

identical with respect to principles of negligence, the court did

not have to find that Indian law applied because there was no

"true conflict" of law. See Coons v. Lawlor, 804 F.2d 28, 30 (3d

Cir. 1986). We agree with the Bhatnagars that Indian and

American negligence law are essentially the same with respect to

duty, breach, cause-in-fact and proximate cause, as well as how

one determines the scope of the duty owed by the defendant to the

plaintiff, if any. However, as we discuss infra pp. 33-36,

Indian courts award damages in a manner different from American

courts. Thus, the district court did not err in making a choice

of law inquiry. Furthermore, despite the Bhatnagars' contentions

to the contrary, it is clear that, under Lauritzen v. Larsen, 345

U.S. 571 (1958), Indian law applies to this dispute. The law of

the flag and the allegiance of the parties to India at the time

of the accident point strongly towards the application of Indian

law, and the Bhatnagars' subsequent sojourn in the United States

does not create sufficient counterbalance to require application

of domestic law to the dispute.

The district court made the following findings of fact

relevant to this portion of the appeal:

16. On March 17, 1991, the ship's steward, Mr. Abdul

Mutalib, took the plaintiff, Urvashi, to the

bridge of the vessel.

17. At the time in question the duty watch officer was

on the bridge together with the duty helmsman.

The duty watch officer's duties included enforcing

the ship's rules that the Bridge of the ship was

off limits to all unauthorized persons.

18. At approximately 4:00 p.m. while the plaintiff and

Mr. Mutalib were on the bridge, the helmsman

picked up plaintiff Urvashi and placed her on a

ledge in front of the clear view screen on the

bridge. . . .

20. The helmsman of the vessel showed the minor

plaintiff how to put her hand on the clear screen

a [sic] part of a "game." He feigned putting the

palm of his hand on the clear screen [sic] and

asked her to do likewise. When minor plaintiff

placed her hand on the clear view screen, her

right hand and portions of her arm were injured.

The helmsman fainted on the bridge.

21. The defendant admits that the acts of the helmsman

and steward were negligent. The steward was

taking tea to the duty officer on the bridge at

the time just before the accident.

22. The duty officer, who is in charge of the bridge,

did not stop the helmsman and steward from acting

negligently. The duty officer should have known

of their permitting the minor plaintiff to play on

the bridge.

23. The duty officer, acting for the defendant,

breached a duty of care owed to plaintiffs [sic]

by permitting plaintiff to be on the bridge, an

unauthorized area, and on the ledge in front of

the clear view screen. The duty officer should

have known of the minor plaintiff's presence on

the bridge.

24. The duty officer's failure to stop the helmsman's

and steward's negligent acts was a substantial

factor in bringing about the harm to the

plaintiff.

25. Plaintiff's injury was proximately caused and

caused in fact by defendant's breach of duty owed

to plaintiff.

26. It was reasonably foreseeable to the duty officer

that plaintiff was in danger of sustaining injury

on the bridge in general and on the ledge in front

of the clear view screen in particular.

J.A. 31-33. As these findings of fact indicate, the district

court found that the duty officer had a duty to prevent Urvashi

and other unauthorized persons from being on the bridge and to

enforce safety precautions during his watch. This finding is

amply supported in the record by the unambiguous testimony of the

Captain of the APJ KARAN. J.A. 1055. The duty officer breached

that duty by failing to act in a manner that would have permitted

him to avert the negligent actions of the steward and helmsman.

Contrary to Surrendra's argument, the district court's

decision did not constitute a finding of strict liability. In

fact, we find Surrendra's contention quite puzzling. It is

permissible to find that someone breached a duty of care owed to

another without actually knowing that a victim has been harmed

until after the fact, so long as a reasonable person would know

that acting or failing to act would create an unreasonable risk

of harm to a class of persons that includes the plaintiff. See

generally Restatement (Second) of Torts § 281, comment "c"

(1965). Surrendra concedes that under Indian law, like American

law, negligence

consists in the neglect of ordinary care or

skill towards a person to whom the defendant

owes a duty of observing ordinary care . . .

the standard of care which would determine

whether or not there has been a breach of

duty is that of a reasonable person who must

be presumed to have foreseen the consequence,

or at least, ought to have seen it.

Appellant-Cross-Appellee's Br. 37. Under this standard, the

district court could properly conclude that, had the duty officer

(Surrendra's agent, acting within the scope of his employment)

reasonably fulfilled his duty to enforce the rules of the bridge,

Urvashi would not have been harmed. Thus, the district court did

not err in finding Surrendra liable.

Furthermore, because of this conclusion, it was

entirely proper for the district court to reject Surrendra's

motion for directed verdict based on the sufficiency of the

evidence. It did not matter whether the plaintiffs had

established that the steward and helmsman were acting within the

scope of their employment.13 Nor did it matter whether there was

evidence that the duty officer actually knew of Urvashi's

presence on the bridge, given that the district court had

reasonably concluded that if the duty officer had been performing

his job properly, she would not have been. Thus, the district

court did not err in denying the motion for a directed verdict.

13

. Although we see no reason why the court could not have

concluded that Surrendra was liable through the actions of the

helmsman and steward, the court made no findings to that effect.

C.

Surrendra next contends that the district court erred

in awarding Urvashi a total of $189,331.00 in damages, including

$39,133 in pecuniary losses and $150,000 in non-pecuniary losses,

"including pain and suffering, disability, disfigurement, loss of

enjoyment of life, mental anguish and emotional injury, past,

present and future as a result of the accident . . . ." J.A. 37.

According to the company, the district court's non-pecuniary

damages award was grossly excessive under Indian law.14 We agree

with Surrendra that the district court erred in its application

of Indian damages principles regarding non-pecuniary damages.

Under Indian law, three principles govern awards of

"non-pecuniary" or "general" damages: "(1) Compensation must be

reasonable and must be assessed with moderation[;] (2) Regard

must be had to awards in comparable cases[; and] (3) sums awarded

should, to a considerable extent, be conventional." J.A. 1444

(Opinion of S.C. Pratap (Sept. 16, 1993));15 J.A. 1397 (Affidavit

of Shardul S. Shroff (Sept. 30, 1993)) ("Shroff Aff. II") As the

experts for the Bhatnagars and Surrendra agree, in applying these

14

. Surrendra does not appear to contest the district court's

award of $39,133.00 in pecuniary damages. See Appellant-Cross-

Appellee's Third Step Reply Br. 21. In any event, we find no

error in the district court's award of pecuniary damages. See,

e.g., J.A. 1443 (discussing permissible pecuniary damages under

Indian law).

15

. This document, an opinion by a former judge of the High

Court of Bombay and ex-Chief Justice of Andhra Pradesh, was

accompanied by an unsworn declaration of Shri Venkiteswaran under

28 U.S.C. § 1746 (see J.A. 1466), and is admissible under Fed. R.

Civ. P. 44.1 for purposes of determining the law of India.

principles Indian courts attempt to make awards comparable and

uniform among Indian tort victims. J.A. 1398 (Shroff Aff. II);

1448 (Pratap Opinion). Thus, Urvashi was entitled to an award of

non-pecuniary damages, but she was not entitled to an award

comparable to what a similarly situated American would receive in

this country. Rather, the district court should have sought to

award an amount comparable to what a similarly situated plaintiff

would have received in India.16

Viewed in this light, the district court's award of

$150,000 in non-pecuniary damages may be grossly excessive. One

American dollar in early 1995 is worth approximately 31.39

rupees.17 Thus, the district court's award, in rupees, was in

the neighborhood of Rs. 4,708,500. The parties' experts have

provided a number of examples of compensation by Indian court

victims for various personal injuries, but the highest award

mentioned is less than 20 percent of the amount awarded in this

16

. As the Supreme Court explained in Lauritzen v. Larsen, 345

U.S. 571 (1952), "[t]he purpose of a conflict-of-laws doctrine is

to assure that a case will be treated in the same way under the

appropriate law regardless of the fortuitous circumstances which

often determine the forum." Id. at 591.

17

. The Wall Street Journal (Feb. 28, 1995) p. C6. Of course,

the relevant exchange rate is actually the one in effect on the

date of the verdict and judgment in the district court. However,

Surrendra asserted that the exchange rate of rupees to dollars

was "more than" 31:1 during the relevant period (Appellant-Cross-

Appellee's Br. 42, and the Bhatnagars do not contest this

assertion. Thus, the calculation in the text is a reasonable

approximation of the value of the district court's award in

rupees.

case, and it was awarded for an injury that was much more serious

than that suffered by Urvashi.18

Because the award in this case was so disproportionate

to the amounts awarded in other Indian tort cases, we will vacate

the award of non-pecuniary damages and remand with instructions

to reassess those damages in accordance with Indian law. We

leave it to the district court to determine whether there is

sufficient material in the record to make that determination, or

whether supplemental briefing and evidence will be necessary.19

18

. The amounts awarded in the cases cited by the Bhatnagars'

damage expert, Shroff, range from 5500 rupees (for damage to a

left arm) to 143,400 rupees (for an "arm injury"), although in

neither of these extreme cases does Shroff note whether the

figure is for both pecuniary and non-pecuniary damages, or only

non-pecuniary. J.A. 1400. Surrendra's damages expert, Pratap,

describes a great many more cases with a broader range of awards

(id. 1448-56), but the largest award listed was 857,352 rupees,

awarded to a former judge who was injured in an automobile

accident and suffered 100 percent disability and paraplegia below

the waist.

19

. We also note an apparent scrivener's error in the district

court's rendition of judgment: also the court's award amounts to

only $189,133 ($39,133 + $150,000), the court's judgment was

rendered in favor of Urvashi Bhatnagar for $189,331. J.A. 40.

Since we are vacating this judgment so that the district court

can properly determine non-pecuniary damages under Indian law,

the typographical error is of no moment because the district

court will undoubtedly correct its calculation upon remand.

III.

We have already addressed and rejected one of the

contentions raised in the Bhatnagars' cross-appeal -- namely,

that the district court erred in concluding that the law of India

applied in this case. See supra n.12. However, the Bhatnagars

also argue that the court erred in failing to award damages to

Kalpana Bhatnagar, and that the court erred in rendering a

"clearly inadequate" award in favor of Urvashi.20 We address

these contentions below.

20

. The Bhatnagars also contend that the district court erred

in admitting certain testimony of the Captain of the APJ KARAN

which the Bhatnagars contend was hearsay. However, given that

this testimony pertained to the finding of negligence against

Surrendra, and given that we have affirmed that finding of

negligence, we find that this claim of error is moot.

A.

The district court found that Kalpana Bhatnagar had

"not demonstrated a loss of service as a result of plaintiff

Urvashi's injury." J.A. 37. In their cross-appeal, the

Bhatnagars contend that this finding was erroneous, but they

provide no evidence that damages for loss of services are

compensable under Indian law (see Appellees-Cross-Appellants' Br.

43-45), whereas Surrendra's expert opined that Kalpana's claim is

"unsustainable" under Indian law (J.A. 1458). Furthermore, the

Bhatnagars failed to demonstrate that Kalpana lost any of

Urvashi's services, even assuming that compensation for such loss

is cognizable under Indian law. For these two independent

reasons, the district court did not commit error in denying

Kalpana recovery.

B.

The Bhatnagars also contend that the district court

erred in awarding a "clearly inadequate" award in favor of

Urvashi. Their argument, however, is confined to the district

court's "non-pecuniary" award, which we have already explained in

section II(C) must be vacated and remanded for redetermination

because of its excessiveness under Indian law. We reject the

Bhatnagars' claim that Urvashi's award was inadequate for the

reasons we noted in finding that the award was grossly excessive

under Indian law.

IV.

Prophets of litigation doom may contend that our forum

non conveniens analysis in this case will cause a flood of

litigation as foreigners rush to the United States to bring

claims that have nothing to do with our nation, our people or our

business. We recognize that the possibility of securing a trial

before an American jury, under American law, provides a strong

draw to foreigners. Indeed, the Supreme Court itself has

recognized that our courts are "extremely attractive to foreign

plaintiffs." Piper Aircraft, 454 U.S. at 252.

Still, we are not troubled by the precedential effect

of our decision. A careful reading of section II(A) makes clear

just how narrow and unusual are the facts and circumstances of

this case. Additionally, it is likely that future defendants

will develop a record (if such can be made) adequate to support

dismissal in similar circumstances. Finally, we have confidence

that our district courts well understand the weight of their

dockets and will not hesitate to dismiss those actions that have

no business being before them. Of course, if they do not, we

will exercise our superintendence at that time, but we see no

reason to reverse a defensible decision to retain jurisdiction in

the face of a claim of forum non conveniens based upon mere

speculation that our courts may have to exercise their discretion

more often in the future.

The judgment of the district court will be affirmed

except as to the award for non-pecuniary damages. As to the non-

pecuniary damages, the judgment of the district court will be

vacated and the case remanded to the district court to

redetermine those damages in accordance with Indian law.

Two-thirds of plaintiffs' costs will be taxed against the

defendants.

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