UPDATE: NY's First Department Affirms Forum Non Conveniens Dismissal, Rejects OxyContin Court's "Mass Torts" Exception
Previously I posted about a New York trial court which held that ordinary forum non conveniens principles do not apply in "mass tort litigation," opting to keep for itself and a New York jury the job of adjudicating the claims of nonresidents whose claims arose in other states. In that post, I contrasted the trial court's decision -- which is currently on appeal -- with the decision of another New York trial court that had refused to retain the product liability claims of nonresidents whose claims arose in other states. That decision, too, was on appeal. Today it was decided in the defendant's favor.
In Avery v. Pfizer, Inc., slip op. (N.Y. App. Div., 1st Dep't Dec. 22, 2009), the court unanimously affirmed the dismissal of 17 plaintiffs' individual product liability suits alleging personal injuries from having taken the defendant's cholesterol-lowering medicine. Each of the plaintiffs was, like the named plaintiff, a non-resident whose claim arose in his or her home state:
[Plaintiff] . . . is a resident of Georgia; his physician who recommended and prescribed the drug, and on whose recommendation [plaintiff] solely relied, lives in Georgia; [plaintiff] ingested the drug in Georgia and suffered his injuries in Georgia; all of [plaintiff's] treating physicians are in Georgia; and all of [plaintiff's] witnesses are in Georgia.
Slip op. at 1-2.
Plaintiffs had argued that a New York forum was especially appropriate here because the allegedly fraudulent representations emanated from New York and allegedly were developed here. But the court flatly rejected that argument, holding that "Plaintiff's 'bare assertion[s]' of fraud allegedly committed at defendant's corporate headquarters in New York, are insufficient to create a substantial nexus with New York outweighing the compelling reasons for dismissal." Id. at 2 (citation omitted).
The court also explicitly rejected the argument -- advanced in the plaintiffs' briefs -- that "mass torts" are somehow different and require disregarding the standard forum non conveniens factors that apply in other cases. Because the trial court was the coordinating court for all New York state court cases involving Pfizer's cholesterol-lowering medicine, plaintiffs reasoned, it should hear all such cases, regardless of the state of their origin.
Of course, much of the concern underlying the traditional forum non conveniens rule is that a local court should not get ensnared in interpreting and applying the nuances of a single state's foreign law. The irony of plaintiff's "mass torts" exception is that it would enmesh New York's coordinating courts in interpreting and applying the law not just of one state, but of as many as 50 foreign jurisdictions.
The First Department understood that foreign law was the law that would apply to these cases. In holding that New York's interest was "insufficient" to outweigh the compelling reasons for dismissal, the court cited Devore v. Pfizer, Inc., 58 A.D. 3d 138, 143 (1st Dep't 2008), in which the First Department had held -- on a nearly identical complaint -- that the "locus of the tort" was in the plaintiff's home state and that the governing law thus would not be New York law, but the law of plaintiff's home state.
Ultimately, the First Department rejected the OxyContin court's "mass torts" exception explicitly: "We decline to disregard the traditional forum non conveniens factors in favor of a 'mass tort litigation' standard." Slip op. at 2 (citing Matter of OxyContin II, 23 Misc. 3d 974 (N.Y. Sup. Ct., Richmond Co. 2009)).
Now, all that remains is for the Appellate Division, Second Department to do the same.
