This week I submitted an amicus brief for the Chamber of Commerce of the United States of America in a particularly interesting appeal in New York's Appellate Division, Second Department, which is an intermediate court of appeal. The issue is whether a single state court should be allowed to arrogate to itself the power to coordinate and try individual product liability cases involving one medicine brought by plaintiffs from across the nation, or whether traditional forum non conveniens principles should apply to require the dismissal of such claims by foreign plaintiffs.
The appeal arises out of litigation over OxyContin, a powerful pain medicine that can cause serious injuries when abused. New York -- like the federal system and many states -- has a procedure for coordinating cases filed throughout the state before one judge, i.e., a state MDL procedure. The New York State OxyContin cases have been coordinated before a justice in Staten Island. Although the plaintiffs' counsel in these cases are predominantly just a few New York law firms, most of the plaintiffs themselves are not from New York. Indeed, from the trial court's opinion, it appears that there were a total of 1,190 non-resident claimants before the court during the entire course of the litigation, and only 223 New York plaintiffs. Put differently, 81% were foreign litigants, while only 19% were New Yorkers.
The defendant manufacturer -- a Connecticut company -- settled one batch of claims, which led to more filings. Subsequently, it moved for forum non conveniens dismissal, arguing that where the medicine was marketed, prescribed, and ingested in another state, allegedly causing injury in that state, New York's common law forum non conveniens factors required dismissal of the claim in favor of the foreign forum. The defendant noted that most of the witnesses resided in other states -- including the physicians, whose testimony is key to failure to warn claims because of the learned intermediary doctrine. Other non-resident witnesses -- including neighbors, co-workers, friends and family who may have seen the plaintiffs engaging in the misuse and abuse of other prescription and illegal drugs -- also are key to the defense of these claims. And yet all of these non-resident witnesses reside outside of the subpoena power of a Staten Island court.
The trial court denied the manufacturer's motion to dismiss. See In re OxyContin II, 23 Misc. 3d 974, 881 N.Y.S.2d 812 (Sup. Ct. 2009). It held that "mass torts are different," and that the interests of economy across the nation's judicial system and the need for uniformity of decisions outweighs any marginal burden on a New York state court that already is adjudicating the coordinated claims of New York plaintiffs. The trial court seemed to express its disappointment that the Joint Panel on Multidistrict Litigation twice had refused to create a federal multidistrict litigation to coordinate the pre-trial proceedings in the cases. And seeing a need, it decided to step in to manage discovery and promote settlements.
But unlike a federal MDL, this is a court that cannot transfer cases back to their home venues. Keeping them means trying them. And the court seemed to discount the conflict of laws problems presented by such claims. Yet choice of law issues factor heavily in the prior New York precedents that granted forum non conveniens dismissal even in individual claims. It cannot be the intention of New York's highest court, the Court of Appeals, that a New York trial court should saddle itself with the job of discerning the nuances of product liability law for 50 states. Particularly in the area of product liability, where the law represents complicated public policy choices that may not have been ruled upon by a state's highest court, fundamental principles of comity suggest that New York trial courts should avoid adjudicating such claims.
Moreover, New York's citizens and litigants deserve more husbandry of New York's scarce judicial resources. Trying foreigners' claims takes citizen jurors, judges, and scarce judicial resources away from deciding the backlogged claims of New York residents. Moreover, imposing the peculiar rules of New York's Civil Practice Law and Rules on non-residents' claims deprives the defendant of discovery tools available in other jurisdictions -- such as expert depositions -- that can be essential in pharmaceutical product liability claims.
Interestingly, the Appellate Division, First Department -- which covers Manhattan -- last week heard an appeal raising the opposite forum non conveniens issue in a case argued for the defendants by one of my partners, Mark Cheffo. There, the trial court had granted Pfizer's motion to dismiss a number of individual product liability cases involving the cholesterol-lowering medicine Lipitor. See Wilson v. Pfizer, Inc., 2008 WL 2468538 (N.Y. Sup. Ct. June 13, 2008). The issue was whether the trial court had abused its discretion in using the recognized forum non conveniens factors to dismiss the claims in favor of filing in the plaintiffs' home states. The plaintiffs had argued in their briefs that the trial court's decision in Oxycontin II should control. Mass torts are different, they said. At the oral argument, which was very brief, the justices seemed to recognize that the locus of the tort was where the doctor received any representations, decided to prescribe the drug, and treated the plaintiffs' alleged injury. The law of the plaintiffs' residences thus would control. And presumably the primary witness in these pharmaceutical product liability cases -- the learned intermediary -- would lie outside the subpoena power of a New York court. What abuse of discretion could there be in deciding that such cases should be dismissed in favor of the plaintiffs' home fora? A decision in this appeal is expected early next year.
Recently, the U.S. Court of Appeals for the Second Circuit affirmed an MDL transferee's decision to dismiss the entire litigation in favor of proceeding in Brazil. See Lleras v. Excelaire Servs., Inc., 2009 WL 4282112 (2d Cir. Dec. 2, 2009). In Lleras, a mass tort was not "different." Ordinary forum non conveniens principles applied. The case involved a plane crash in the Amazon rainforest. The plaintiffs and decedents were Brazilian citizens. The Second Circuit held that the trial court had "properly found that 'the important factors of lack of jurisdiction in this forum over potentially liable parties and the lack of compulsory process over witnesses and evidence in Brazil, together with other considerations, swing the balance sufficiently to make this forum genuinely inconvenient and a Brazilian forum significantly preferable.'" Id. at *1 (citation omitted).
The doctrine of forum non conveniens is increasingly important in product liability and mass tort litigation. In the early part of the 20th Century, tort suits were filed at home, where the plaintiff lived and was injured. But with the advent of national and international corporations, broad distribution of products, and lawyer advertising, suits increasingly are filed in states far from plaintiffs' home, but where plaintiffs can still obtain personal jurisdiction over the defendant. Forum non conveniens is an increasingly important tool to protect a forum's limited resources and its citizens, as well as defendants.