MARILYN GIANOCOSTAS & another, [Note 1] administrators, [Note 2] vs. RIU HOTELS, S.A., & others. [Note 3]

DUFFLY, J. Following the death of their daughter resulting from the alleged failure of medical personnel to recognize and treat her diabetes-related symptoms that developed while she was vacationing in the Dominican Republic, the plaintiffs brought this wrongful death action in Superior Court [Note 4] for negligence and negligent misrepresentation. On motions of all named defendants, a Superior Court judge dismissed the complaint on forum non conveniens grounds. The plaintiffs' appeal raises the question whether the judge acted within the scope of her discretion in concluding that the plaintiffs have an adequate remedy in the courts of the Dominican Republic. We apply to this question the "apparently universal rule, of deferring to the discretion of the motion judge." W.R. Grace & Co. v. Hartford Acc. & Indem. Co., 407 Mass. 572 , 584 (1990).

As to the defendants Riu Hotels, S.A., and its apparently related corporate entities [Note 5] (collectively, Riu Hotels), we perceive no abuse of discretion. However, because the Superior Court judge's memorandum of decision reflects no consideration of

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the relevant factors as they relate to the defendant Interface Group-Massachusetts, LLC (doing business as GWV International, hereafter GWV), we are unable to determine whether the Dominican Republic offers an adequate remedy with respect to claims against GWV and, if so, whether (1) the action should proceed against both defendants jointly in Massachusetts or in the Dominican Republic, or (2) the action against GWV should be tried separately in Massachusetts and the action against Riu Hotels should proceed in the Dominican Republic.

1. Background. We summarize the relevant facts, drawing from the plaintiffs' complaint (for these purposes we take as true the facts alleged) and the affidavits and deposition transcripts accompanying the defendants' motions to dismiss and the plaintiffs' opposition thereto. Green v. Manhattanville College, 40 Mass. App. Ct. 76 , 78 (1996).

Jennifer Gianocostas, the daughter of Marilyn and George Gianocostas, was, as of March of 1999, a twenty year old college student in Massachusetts. Jennifer required insulin to control her diabetes, but she was otherwise in good health. In February and March of 1999, Jennifer planned a trip to the Dominican Republic, using the services of Anthony Mavrakos, a local travel agent employed by AAA Travel in Saugus. Mavrakos gave Jennifer information about a vacation package in the Dominican Republic offered by GWV. Jennifer informed Mavrakos of her medical condition and that she would need access to a refrigerator to store her insulin. She also requested information about how to travel with needles and insulin as well as the availability of medical services at the advertised hotel, the Hotel Riu Mambo in Puerto Plata. [Note 6] Mavrakos apparently satisfied her concerns and informed Jennifer that the Hotel Riu Mambo did offer medical services. Based on that information, Jennifer

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purchased a seven-night vacation package that included accommodations at the Hotel Riu Mambo complex. Accompanied by two friends, Jennifer arrived at the Hotel Riu Mambo in Puerto Plata on March 13, 1999.

On the evening of March 15, during her stay at the Hotel Riu Mambo, Jennifer began to vomit repeatedly and to suffer from diarrhea. The hotel staff referred Jennifer to a clinic that provided services to guests of the hotel complex, the Doctor Correa International Touristic Medical Service & CIA (clinic). Janet Harris, a GWV representative who assisted travelers at the Hotel Riu Mambo complex, met with Jennifer on March 16. The following day, March 17, Jennifer sought treatment at the clinic, where she was placed on intravenous fluids. [Note 7]

On March 19, Jennifer was transferred on an emergency basis to a private hospital in Puerto Plata. She lapsed into a severe diabetic ketoacidotic coma that day. Insulin treatment was not administered until March 20. On March 20, through arrangements made by her parents, National Air Ambulance transported Jennifer to Jackson Memorial Hospital in Miami, Florida, where she was admitted in critical condition. Jennifer died one month later as a result of complications from diabetic ketoacidosis.

2. Discussion. The principles guiding forum non conveniens inquiry are set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509 (1947), and Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947). See New Amsterdam Cas. Co. v. Estes, 353 Mass. 90 , 95 (1967); Minnis v. Peebles, 24 Mass. App. Ct. 467 , 469 (1987). See also Iragorri v. International Elevator, Inc., 203 F.3d 8, 12 (1st Cir. 2000). The inquiry involves a two-step analysis: whether an adequate alternative forum is available, and if it is, whether private and public interests stronglyfavor

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litigating the claim in the other forum.

a. Adequacy of alternative forum. It is the defendants' burden to establish that there exists an adequate alternative forum within which to litigate the case. See Mercier v. Sheraton Intl., Inc., 935 F.2d 419, 425 (1st Cir. 1991), appeal after remand, 981 F.2d 1345 (1992), cert. denied, 508 U.S. 912 (1993). "[D]ismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981).

The plaintiffs, in their wrongful death action against Riu Hotels and GWV, have asserted specific claims of negligence against both Riu Hotels and GWV and negligent misrepresentation against GWV. In their motions to dismiss, the defendants argued that the case at its core "is a medical malpractice action" involving conduct occurring primarily in the Dominican Republic, based on the plaintiffs' allegations that the clinic and its medical staff were negligent in treating Jennifer and that the plaintiffs received assurances from Janet Harris on March 17 that Jennifer's condition was improving and that the clinic was providing appropriate care.

The bases for the plaintiffs' claims against Riu Hotels, however, are distinct from those against GWV. The negligence claim against GWV is premised on a theory of negligent selection (namely, that GWV was responsible for ensuring that hotel guests received competent medical care and that GWV's steps to ensure the competence of clinic medical staff providing care to hotel guests were inadequate). The negligent misrepresentation claim focuses primarily on the representations allegedly made by GWV [Note 8] (a Massachusetts entity) to Jennifer (a Massachusetts resident) in Massachusetts. In addition, the plaintiffs allege that statements made by Harris (while in the Dominican Republic) to Jennifer's father (a Massachusetts resident who was apparently in Massachusetts at the time of the representations)

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lulled them into believing that Jennifer was receiving appropriate medical attention and that without these misrepresentations, the plaintiffs would have flown sooner to their daughter's aid.

We agree with the motion judge that the fact that the proceedings and remedies available in the foreign jurisdiction differ from, or are possibly less favorable than, those in the Commonwealth does not render the alternative system inadequate. See, e.g., Alcoa Steamship Co. v. M/V Nordic Regent, 654 F.2d 147, 159 (2d Cir.), cert. denied, 449 U.S. 890 (1980); LTX Corp. v. Daewoo Corp., 979 F. Supp. 51, 59n.7 (D. Mass. 1997), aff'd, 141 F.3d 1149 (1st Cir. 1998). See also Minnis v. Peebles, 24 Mass. App. Ct. at 470 ("we do not factor into the balance the possibility that the plaintiffs' claims may have less monetary value in [the foreign jurisdiction]"). As to the claims against Riu Hotels, which are based upon the alleged negligence of the medical providers at the clinic in the Dominican Republic, the judge supportably concluded that the Dominican Republic is an adequate alternative forum.

However, the Superior Court judge's memorandum does not specifically address whether the plaintiffs' claims against GWV for negligent misrepresentation, which has elements distinct from those of negligence, [Note 9] and for negligent selection are recognized as bases for recovery in the Dominican Republic. Relying on affidavits of two attorneys admitted to practice in the Dominican Republic, the motion judge concluded that the Dominican Republic "permits litigation of the subject matter in

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dispute." [Note 10] In making this determination, the judge failed to focus on the nature of the claims and the precise issues likely to be actually tried as against GWV. Cf. Iragorri v. United Technologies Corp., 274 F.3d 65, 74 (2d Cir. 2001) ("Rather than simply characterizing the case as one in negligence, contract, or some other area of law, the court should focus on the precise issues that are likely to be actually tried . . . . In a suit alleging negligence, for example, the court might reach different results depending on whether the alleged negligence lay in the conduct of actors at the scene of the accident, or in the design or manufacture of equipment at a plant distant from the scene of the accident").

We are unable to conclude, on this record, whether the Dominican Republic is an adequate forum with respect to claims against GWV. See Mercier v. Sheraton Intl., Inc., 935 F.2d at 425-427 (court vacated dismissal order and remanded for further findings where moving party's affidavit did not positively aver that Turkish law recognized claims alleging breach of contract and tortious interference with contract).

b. Private and public interests. The presumption in favor of a plaintiff's choice of forum "may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum." Piper Aircraft Co. v. Reyno, 454 U.S. at 255. See New Amsterdam Cas. Co. v. Estes, 353 Mass. at 95. Pointing to factors such as ease of access to sources of proof and availability of compulsory process for attendance of unwilling witnesses, the defendants in their motions to dismiss claim that the Dominican Republic is the most convenient forum.

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These factors, on which the motion judge also relied, all pertain primarily to claims against Riu Hotels for negligence based upon the alleged malpractice of medical providers of the clinic associated with the hotel. [Note 11]

In weighing the public and private interests favoring litigation of the plaintiffs' claims against GWV in the Dominican Republic, the judge noted only that "[Janet] Harris'[s] alleged misrepresentations occurred in that country." The judge did not consider the location of witnesses with respect to these specific claims. [Note 12] Iragorri v. United Technologies Corp., 274 F.3d at 74 (judge must "focus on the precise issues that are likely to be actually tried, taking into consideration the convenience of the

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parties and the availability of witnesses and the evidence needed for the trial of these issues"). Nor did the judge give consideration to the interest of Massachusetts in regulating the travel industry conducting business within its borders or to the question whether Massachusetts or Dominican law is likely to govern the claims against GWV. [Note 13] If Massachusetts law governs, then as to GWV, this factor would weigh heavily in favor of Massachusetts as the distinctly preferable forum. W.R. Grace & Co. v. Hartford Acc. & Indem. Co., 407 Mass. at 586.

3. Conclusion. Although the motion judge's memorandum amply supports her conclusion that, as to claims against the Riu Hotels, the Dominican Republic provides an adequate forum and that private and public factors combine to render the Dominican forum the more convenient as to Riu Hotels, we must remand the case for consideration of the specific claims against GWV and for a determination whether, in light of that further consideration, the Dominican Republic remains the most convenient forum for litigation of the claims against all defendants or whether on balance the interests of justice would be better served if the actions were severed. See, e.g., Iragorri v. United Technologies Corp., 274 F.3d at 70 (noting without discussion that claims against one defendant were transferred to another district, where case against that defendant was dismissed on forum non conveniens grounds). Cf. Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So. 2d 1111, 1116-1117 (Fla. Dist. Ct. App. 1997). [Note 14]

A further aspect of the judge's ruling requires clarification.

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The defendants filed written notices of waiver of any defense based on a statute of limitations or on a claim of lack of personal jurisdiction, which might otherwise be available to them in an action by the plaintiffs in the Dominican courts. The defendants also agreed to waive any requirement that the plaintiffs post a bond. The defendants claim that the waivers effectively permit the plaintiffs to commence a single action against all of the same defendants in a Dominican court. The motion judge did not expressly condition her dismissal order on the moving defendants' notices of waiver. Arguably, the order incorporates such waivers; however, since the Dominican courts could conceivably reject the waivers, we think the wiser course is to make this an explicit condition in the event of a grant of dismissal. See Mercier v. Sheraton Intl., Inc., 935 F. 2d at 426 (Federal District Court "should have granted a dismissal conditioned on the Turkish courts' actually taking cognizance of a substitute action"). See also Pain v. United Technologies Corp., 637 F.2d 775, 780, 785 (D.C. Cir. 1980), cert. denied, 454 U.S. 1128 (1981) (orders granting motions to dismiss on grounds of forum non conveniens were conditioned on stipulations consenting to personal jurisdiction in foreign court, agreeing to waive any defense of statute of limitations were such suit to be brought within one year of date of dismissal, and agreeing "to proceed directly to trial only on the issue of damages, without contesting liability, in any suit filed by plaintiffs outside the United States"; the order "expressly provid[ed] that the suits could be reopened in the United States without prejudice should any of the stipulated conditions fail to materialize").

The judgment is reversed. The matter is remanded to the Superior Court for further consideration of whether the Dominican Republic offers an adequate remedy with respect to the plaintiffs' claims against GWV and, if so, whether the action should proceed against the defendants jointly in Massachusetts or the Dominican Republic, or whether the action against GWV should be tried separately in Massachusetts and the action against Riu Hotels should proceed in the Dominican

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Republic. Any judgment of dismissal on the ground of forum non conveniens shall be conditioned upon the defendants' affirmatively waiving, in any action filed in the Dominican Republic, any defense based on statutes of limitation or lack of personal jurisdiction, and any requirement that the plaintiffs post a bond; moreover, any judgment of dismissal shall be conditioned upon the courts of the Dominican Republic giving full force and effect to such waivers.

So ordered.