NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 14 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES R.S. HERBERT and BARBARA No. 14-15760

ELLIS,

D.C. No. Plaintiffs-Appellants, 1:13-cv-00452-DKW-BMK

v.

MEMORANDUM *

VWR INTERNATIONAL, LLC, a Delaware corporation, successor Sargent- Welch Scientific Company,

Defendant-Appellee.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding

Argued and Submitted February 21, 2017 Honolulu, Hawaii

Before: KOZINSKI, HAWKINS, and BEA, Circuit Judges.

James Herbert and Barbara Ellis appeal the district court’s dismissal of their

claims on the basis of forum non conveniens. We have jurisdiction under 28

U.S.C. § 1291 and affirm. Because the parties are familiar with the factual and

procedural history of this case, we repeat only those facts necessary to resolve the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. issues raised on appeal.

Appellant argues that the district court erred in finding that certain private

interest factors which are related to witnesses and evidence favored dismissal

because there was no evidence in the record specifically identifying witnesses and

physical evidence in Indonesia. The Supreme Court and Ninth Circuit have

rejected the notion that evidence in the alternative forum must be identified with a

high degree of specificity. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 258 (1981)

(a high degree of “detail is not necessary…because many crucial witnesses are

located beyond the reach of compulsory process, and thus are difficult to identify

or interview. Requiring extensive investigation would defeat the purpose of their

motion. Of course, defendants must provide enough information to enable the

District Court to balance the parties’ interests”); Carijano v. Occidental Petroleum

Corp., 643 F.3d 1216, 1231 (9th Cir. 2011) (“The proponent of a forum non

conveniens dismissal is not required to identify potentially unavailable witnesses in

exact detail.” (citing Piper, 454 U.S. at 258)); see also Camejo v. Ocean Drilling &

Exploration, 838 F.2d 1374, 1379-80 (5th Cir. 1988) (“The Supreme Court has

held that a moving defendant need not submit overly detailed affidavits to carry its

burden, but it ‘must provide enough information to enable the district court to

balance the parties[’] interests.’” (citation omitted)).

The record contained sufficient information to balance the parties’ interests

2 and the district court did not abuse its discretion by drawing illogical or

implausible conclusions from the record regarding the probable presence of

witnesses and evidence in Indonesia. See United States v. Hinkson, 585 F.3d 1247,

1251 (9th Cir. 2009). An expectation of records located in Indonesia regarding

asbestos-containing products used in his school was supported by Herbert’s own

declaration in which he stated that he would order products through the school

administration’s office. While Herbert declared that the building in which he

taught in Indonesia was demolished, it is undisputed that he lived and worked in

Indonesia from 1983 to 1998, where he alleged the asbestos exposure occurred.

For this reason, it was neither illogical nor implausible for the district court to

expect that documentary and perhaps physical evidence about his former living

quarters or from other school buildings constructed using similar materials at

around the same time as the now-demolished science building could yield evidence

regarding asbestos exposures from sources other than defendant’s products. It was

neither illogical nor implausible to have expected other school employees or

construction workers still in Indonesia to be relevant witnesses as to construction

materials or products used at his school. Such witnesses and documentary and

physical evidence would likely be the only means by which defendant could prove

Herbert’s asbestos exposure from products other than defendant’s. Taken together,

the factual record contained sufficient information for the district court to balance

3 the parties’ interests as to the private interest factors and the district court did not

abuse its discretion in so doing.

Contrary to appellant’s assertions, the district court did not abuse its

discretion in weighing certain public interest factors. First, Indonesia has a greater

interest in this lawsuit because Herbert’s exposure occurred in Indonesia, giving

that forum (unlike Hawaii) an interest in deterring and ensuring compensation for

injuries that occurred in its territory. Second, Bahasa Indonesian (the official

language of Indonesia) will likely be important in this lawsuit, which would burden

local courts and juries in Hawaii given their lack of proficiency in this language.

Finally, based on evidence in the record and official published data the district

court properly found that this civil trial would be resolved more expeditiously in

Indonesia than Hawaii.

The district court properly considered each of the public and private interest

factors. Because a significant majority of them favor Indonesia over Hawaii, even

accounting for the deference owed to the plaintiffs’ choice of their home forum,

the district court did not abuse its discretion in dismissing this case pursuant to

forum non conveniens. See Loya v. Starwood Hotels & Resorts Worldwide, Inc.,

583 F.3d 656, 665-66 (9th Cir. 2009).

The pending motion to substitute Barbara Ellis as legal representative of

James Herbert’s estate in this litigation is GRANTED. Fed. R. App. P. 43.

4

AFFIRMED.

5

FILED

Herbert v. VWR International, No. 14-15760

APR 14 2017

HAWKINS, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

The question before us is whether this case should be tried in Hawaii or

Indonesia. Under the applicable test, Plaintiff Herbert’s choice of Hawaii deserves

substantial deference unless Defendant VWR International establishes

“oppressiveness and vexation . . . out of all proportion to plaintiff’s convenience” in

trying the case there. See Carijano v. Occidental Petroleum Corp., 643 F.3d 1216,

1234 (9th Cir. 2011). Offering no proof that any witnesses or evidence exist in

Indonesia, VWR fails that test. Indeed, from the point of view of its own

convenience, VWR and its very able counsel could defend this case just about

anywhere, including Hawaii. I would reverse and remand for further proceedings in

district court.