Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

Conventional wisdom says that classes involving personal injuries or emotional distress damages cannot be certified because individual issues predominate those types of claims.  As Law360 reported on Tuesday, that conventional wisdom was confirmed by a recent decision in the litigation involving Similac powdered infant formula, which the manufacturer had recalled based on reports of beetle larvae contamination that allegedly caused some infants to suffer gastrointestinal problems.  See Brandner v. Abbott Labs., Inc., Civ. A. No. 10-3242, Slip op. (E.D. La. Jan. 23, 2012).

Plaintiff sought certification of a Louisiana-only Rule 23(b)(3) class of purchasers of Similac products bearing recall lot numbers that were purchased during the recall purchase period.  She asserted claims for personal injury and emotional distress damages under Louisiana's Product Liability Act, and she asserted economic loss under a theory of redhibition.

The court described its job as identifying the substantive issues that would control the outcome of the case, assessing which issues would predominate and whether they were common to the class, and then determining whether there is a way to try the case that would prevent "'the class from degenerating into a series of individual trials.'"  Slip op. at 6 (quoting Madison v. Chalmette Refining LLC, 637 F.3d 551, 555 (5th Cir. 2011)).

The court examined the elements of an LPLA claim, and quickly concluded that it needed to go no further than holding that the elements of predominance and superiority were not met:

The Court finds that the individual issues predominate over issues common to the class.  First, despite Brandner's argument to the contrary, the LPLA requires a plaintiff to demonstrate that the product was unreasonably dangerous when it left the manufacturer's control.  Courts routinely deny claims when the plaintiff cannot establish this element of an LPLA cause of action.  Whether each class member purchased contaminated Similac is subject to individualized, not collective, proof.

Second, each putative class member must establish that Abbott's actions were a proximate cause of his or her injury. . . .  The court need not determine predominance with respect to general causation, because proving specific causation would require a determination of "an individual's family and medical history; age; gender; diet; . . . the timing of ingestion of the product; . . . whether that individual suffered an injury, when the injury occurred, the type of injury suffered, and the number of occurrences of the injury; the likelihood of injury; and/or the foundation as to whether a justifiable fear of injury exists." . . .  This highly individualized inquiry leads the court to conclude that issues common to the class do not predominate.

Third, all plaintiffs who claim emotional distress . . . would have to establish not only the distress but also the attendant damages. . . .  The damages issue requires a determination of whether plaintiffs sought medical treatment, psychiatric treatment, the degree to which plaintiffs manifested generalized fear, and the severity of plaintiffs' emotional distress.  Because the determination of whether each member suffered emotional distress turns on a highly individualized assessment, questions of fact regarding individual members predominated over common issues of fact.

. . . Establishing emotional [distress] damages would entail the exact type of 'mini-trials' the Fifth Circuit has cautioned against.

Slip op. at 9-13 (citations omitted).

The court also denied certification of the redhibition claim, which required claimants to establish that the product had a physical imperfection or deformity at the time it was purchased in order for the claimants to recover the purchase price, as well as any interest.  Plaintiff argued that the fact of the recall made the redhibition claim subject to common proof.  The court held otherwise.  Because the defendant's testing had not found contamination in every batch, and because many of the lots that were included within the recall simply were not tested at all, there was no way to know on a class-member-by-class-member basis whether the product actually was contaminated.  If it was not, there was no claim under Louisiana redhibition law.  Moreover, the recall was voluntary and did not admit contamination of each of the recalled lot numbers; in fact, the recall notice had said the possibility of contamination was remote.  Accordingly, the court held that common issues did not predominate for this cause of action as well.

Because the court was able to decide the class certification motion on the issues of predominance and superiority, it did not engage in an analysis of Rule 23(a) factors or have to construe the Supreme Court's Wal-Mart v. Dukes decision.

Although the result in Brandner is hardly surprising, it is a good reminder why class actions for personal injuries and emotional distress simply are not suited for class action treatment.

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As a kid, I was a huge fan of Carnac the Magnificent on Johnny Carson's Tonight Show.  In this first post of the new year, I thought I would channel my inner Carnac to make some predictions about what we can expect in the field of consumer class actions and mass torts in 2012.

1.  Wal-Mart v. Dukes will have tremendous impact on consumer class actions and mass torts.  Despite plaintiffs' attempts to limit the opinion solely to employment discrimination cases, the actual holdings in Dukes go to the fundamental core of class actions.  A unanimous Court said you can't deprive a defendant of its substantive right to challenge the elements of individual class members' claims just to make it easier to have a class.  Similarly, a unanimous Court strongly suggested -- even if the 8th Circuit didn't get it -- that Daubert rules matter at the class cert stage.  And a unanimous Court rejected the use of "trial by formula" rather than proof of actual damages.  These holdings are just as important -- if not moreso -- as the Court's articulation of the commonality standard, and you will begin to see the impact of these Dukes holdings in consumer class action cases this year.

2.  So many courts -- primarily in California -- have struggled to get around the clear preemption analysis in AT&T Mobility v. Concepcion that the U.S. Supreme Court is going to have to take up the issue of class arbitration waivers again.  It may not happen by the end of 2012, but too many courts have shot the bird to the Supremes since Concepcion.  Some argue that the decision does not apply to a particular cause of action under a state statute.  Others just find the whole arbitration provision containing a class action waiver void as against public policy.  But the simple fact is that it is nearly impossible to square these opinions with the very clear preemption analysis in Concepcion, and in the right case, the Court is going to have to issue certiorari to say that it really meant what it said.

3.  Courts may struggle for the right standard by which to judge personal jurisdiction, but plain ole stream-of-commerce theory is dead.  A majority of justices made that much plain in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011).  They just couldn't agree on a new standard.  But we know there must be some purposeful availment in addition to mere awareness that the product might reach the forum.  I believe most courts that find jurisdiction will rely on web presence in the forum as the "plus" factor that shows purposeful availment of the forum's laws.

4.  Prescription medicine plaintiffs will continue to cast their plain old failure to warn claims as "design defect" claims to try to get around the clear bar of the learned intermediary doctrine.  Hopefully, most courts will continue to recognize that medicines are unavoidably unsafe products for which you cannot have a design defect claim.  Indeed, you can't even propose a feasible alternative design, because to do so is to change the product into something else!

5.  Global warming lawsuits seeking to foist on certain industries humanity's collective responsibility for climate change will continue, but the defenses of standing, remoteness, proximate cause and the political question doctrine will continue to be strong defenses.  Because the Supremes dealt only with federal law issues in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011), courts will still have to work these issues out as matters of state law.  We can expect plaintiffs to win at least one of these cases at a trial court level.  But the sheer magnitude of how far they are attempting to stretch state law should cause appellate courts to be more circumspect.

6.  Product sellers from tobacco to telephones will continue to vigorously defend their commercial speech rights under the First Amendment.  Appellate courts will grapple with these sellers' rights to not be forced to convey government messages about their products where there are other, less intrusive means of achieving the government's purpose.

7.  Plaintiffs will attempt to circumvent the federal preemption for generic medicines recognized in Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), by trying to describe various claims -- such as express warranty claims -- as enforcing voluntarily adopted standards, rather than imposing state law requirements that conflict with federal law.  Plaintiffs will be hard-pressed to succeed on such dubious claims for at least two reasons.  First, the statements they point to will be consistent with what FDA has approved for the label, making plaintiffs' claims conflict with federal law.  And second, it will be very difficult to find statements that were actually material and became part of the basis of the bargain.

8.  The food and beverage industries are going to continue to be a primary target for consumer fraud claims.  Often these suits are fueled by health claims in advertising or on the label.  But increasingly such suits are being brought based on an ingredient in the product.  Although FDA has balked at issuing regulations that fully define when products may be labeled "natural," it has begun enforcement actions against products that use the term and contain synthetic preservatives or other synthetic ingredients.  Expect more of such consumer fraud class actions in 2012.

9.  Although class action suits over head injuries in professional football players may capture the imagination of sports writers and the public, the fact remains that class actions for personal injuries are almost never certified because the individualized issues regarding each class member's alleged injury, causation, and damages predominate over any common issues.  Don't expect 2012 to bring a big class action payday for professional footballers who allege concussion-related harm.

10.  The U.S. Supreme Court's majority and dissenting opinions in Kiobel v. Royal Dutch Petroleum, No. 10-1491, are going to be fascinating reading.  Kiobel, of course, raises the issue of whether legally fictitious entities -- corporations, rather than individuals or Nation-States -- can be sued under the Alien Tort Statute, which dates back to 1789.  The Second Circuit -- looking around the globe to foreign legal precedents -- held that corporations were not subject to ATS suits.  One may imagine that certain Justices who might concur in that result might bristle at relying on foreign legal precedents to get there.  While I'm willing to bet that the result in Kiobel is affirmed, I'll honestly admit that I can't predict what the opinion(s) will look like in reaching that result.

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There are a lot of "top blog" contests out there.  I've been honored to be nominated in a few, but unless I develop a sense of humor and an encyclopedic knowledge of comic books like my friends at Abnormal Use, I'm unlikely to win one.  (Given that there are no red carpet galas, gold statues, or lavish after-parties associated with these contests, I can't pretend to be that disappointed.  Besides, although Kathy Griffin hosts the Academy's separate "technical awards" -- which she calls "The Schmemmys" -- for things like "Best Key Grip in a Drama," I doubt LexisNexis could lure even her to host an awards show for more than 25 tort bloggers.)

Still, I think these contests are useful to those of us who use blogs to stay on top of developments in the torts field.  I always like to explore the sites of those who have been nominated, and I like to suggest some blogs that I find particularly useful which may have been overlooked.  You may want to do the same.

Here's your opportunity.  The folks at LexisNexis Communities appear to have a new contest, and they are in the nominations phase.  This blog is on the list so far, as well as some (but not all) of my favorites.  Check it out by clicking here and see if we can help broaden the nominations list a bit.  You may be required to join the LexisNexis Communities to nominate your favorite blogs, but come on, you should be a member already.

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Two recent decisions from federal courts grappling with air disaster cases provide an interesting illustration of basic forum non conveniens principles.

In Claisse v. The Boeing Co., No. 09 C 3722, Slip op. (N.D. Ill. Sept. 28, 2010), the court was faced with a lawsuit brought on behalf of decedents in the crash of a Kenya Airways flight in Cameroon on May 5, 2007 that killed all 114 passengers and crew.  Plaintiffs sued a number of the manufacturers of the plane and its components in state court in Illinois, and defendants removed to federal court and moved for forum non conveniens dismissal.

The court undertook a classic forum non conveniens analysis, focusing first on whether there was an adequate alternative forum, and then analyzing the public and private interest factors set out in Supreme Court precedents to determine where the action should proceed.  The court concluded that Cameroon was an adequate alternative forum for the suit.  The plaintiffs argued that the Cameroon courts did not provide for the same pre-trial discovery that they could receive in the United States.  But the court observed that the processes in the alternative forum need not be as comprehensive or favorable as those in the US.  Because there were mechanisms for plaintiffs to obtain evidence, that factor did not disqualify Cameroon as a forum.

Plaintiffs also failed to rebut the defendants' law expert, who opined that Cameroon law provides a remedy for negligence, strict liability, breach of warranty and wrongful death.  The fact that the amount of the damages recovered may not equal that which is possible in the US is irrelevant, so long as some form of basic remedy is available.  Plaintiffs also complained that a cause of action was not available for spoliation of evidence, but they could not counter the defense expert's testimony that an adverse inference would be available at trial if plaintiffs could prove their spoliation allegations.

Plaintiffs also argued that Cameroon courts are corrupt and unjust, but the court held that they failed to provide sufficient reliable evidence to support this allegation. 

After concluding that Cameroon was an adequate alternative forum, the court then analyzed the private interest factors, which focus on the convenience of the parties and the access to sources of proof.  One large factor weighing against retaining jurisdiction in Illinois was that the court could not obtain personal jurisdiction over the airline, Kenya Airlines, which had maintained and operated the airplane and presumably would have evidence crucial to the defense.  The court also refused to give a presumption of deference to plaintiffs' choice of forum, since it was not the plaintiffs' domicile.  Indeed, not a single decedent had resided in the United States. 

The court also looked at the availability of evidence, noting that plaintiffs had not established that any defendant had evidence or witnesses within the Northern District of Illinois.  More important, all of the eyewitnesses and many others were present in Cameroon and were beyond the subpoena power of the court.  The commission investigating the crash was located in Cameroon.  And all evidence about plaintiffs' damages was located in Cameroon.  The private interest factors thus weighed heavily in favor of Cameroon.

As for the public interest factors, Illinois had little, if any, local interest in the parties' dispute, while Cameroon had a very compelling local interest in addressing air safety concerns within its borders.  Moreover, the near certainty that Cameroon law would have to be applied weighed in favor of transfer, as it would require the federal court to learn the substantive law of a foreign forum.  Finally, placing the burden of jury duty on Illinois citizens and otherwise burdening Illinois federal courts when there was no connection to the forum was an unwarranted burden.

The court thus dismissed the case, subject to the defendants submitting to the jurisdiction of Cameroon, making their documents and witnesses available to plaintiffs, agreeing to toll the statute of limitations, and agreeing not to raise certain defenses (such as res judicata).

Justice Breyer's brother, District Judge Charles Breyer, was faced with an additional issue in deciding the air crash disaster cases arising out of the 2009 crash of the Air France flight en route from Brazil to France on June 1, 2009.  In re Air Crash Disaster over the Mid-Atlantic on June 1, 2009, MDL No. 10-2144-CRB, Slip op. (N.D. Cal. Oct. 4, 2010).  There, two of the decedents purportedly were U.S. residents, and the question was thus whether the Montreal Convention provided a U.S. jurisdiction for their claims and, if so, whether common law forum non conveniens doctrine could be used to dismiss the actions.

The Montreal Convention allows a passenger to sue in a variety of countries as a result of air accidents:  (1) the carrier's domicile, (2) the carrier's principal place of business, (3) where the ticket was purchased, (4) the flight's destination, and (5) the passenger's "principal and permanent residence," which is defined as "the one fixed permanent abode of the passenger at the time of the accident." 

Although 228 passengers and crew were killed in the crash, there were only 2 plaintiffs who purported to have their permanent and principal residence in the U.S.  Those decedents, however, had been living and working in Brazil for more than a year.  They paid taxes in Brazil and the U.S., had spent time abroad on temporary international assignments before, and kept their home in Texas, although they had shipped a container of household goods to Brazil.

Judge Breyer concluded that the treaty's provision means "domicile," essentially, and that the decedents' subjective view of their assignment in Brazil as temporary and their intention to return made them domiciliaries of Texas.  Thus, the court had jurisdiction over their claim.

The question then became whether the court could give up jurisdiction.  It was clear that most of the evidence was in France, where a commission was investigating the crash, and that the court lacked compulsory process over the documents, physical evidence or witnesses.  And only 2 of the 228 decedents were U.S. domiciliaries.  Forum non conveniens would dictate dismissal -- but only if it could still be applied in light of the Montreal Convention's provision creating jurisdiction in the U.S.

The court's analysis was further complicated by a Ninth Circuit precedent holding that the predecessor treaty -- the Warsaw Convention -- did not allow for the application of forum non conveniens even though it had indicated that the procedural rules of the forum country would apply to air accident claims.  See Hosaka v. United Airlines, Inc., 305 F.3 989, 993 (9th Cir. 2002). 

Judge Breyer held that, notwithstanding Hosaka, the Montreal Convention did not prevent a U.S. court from dismissing a case using forum non conveniens.  He reasoned:

First, Hosaka was interpreting the Warsaw Convention, and Hosaka explicitly noted that it was not addressing the applicability of forum non conveniens under the (at the time not yet ratified) MC.  At the time of the Warsaw Convention's drafting in 1929, the doctrine of forum non conveniens was relatively new.  Thus, the Warsaw Convention's silence on the availability of forum non conveniens dismissal meant that it was not available absent a clear statement to the contrary.  The MC, on the contrary, was ratified recently, and by that time the doctrine of forum non conveniens was well established and had even been used in the United States to dismiss Warsaw Convention actions.  Against this changed backdrop, reaffirming (as the MC did) that a state's procedural law applies suggests that forum non conveniens dismissals are available.  Moreover, this was the position taken by the United States during MC negotiations and after.

Slip op. at 9 (citations omitted).

Having interpreted the Montreal Convention as allowing for forum non conveniens dismissal, the court took little time in concluding that the lawsuit involving the tragic flight from Brazil to France belonged in a court in France, not the United States.

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One of my news clipping services brought me this fascinating tidbit from The West Virginia Record:  after 3 days of trying to empanel a jury in a massive liability trial over cigarettes, the court simply gave up.  It had gone through 650 prospective jurors and only qualified 6 for potential service.  According to the article, "Lawyers excused a woman who said people have no right to sue over diseases that are disclosed on the warning label of a package."  Funny, I would have liked her on my jury.

The court will try again in June, this time with a panel of 2,000 prospective jurors.

The article's description of the trial raises some constitutional questions, too.  Apparently one jury would participate in the liability trial, and if it finds the defendants liable, a second jury would be empaneled for a damages trial.  Seventh Amendment, anyone?  (Or at least, as my colleague Hayden Coleman correctly points out, its state constitutional equivalent?)

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Every once in a while, I read an opinion that is so surprising that I have to stop and say, "Where's Allen Funt?!  I must be on Candid Camera!"  This is one of them:  In re San Juan Dupont Plaza Hotel Fire Litigation, 2010 WL 60955 (D. P.R. Jan. 7, 2010).

Frankly, I printed this decision and put it in my "to read" pile for the name alone.  The litigation over the Dupont Plaza fire, which killed almost 100 guests in 1987, was one of the defining mass torts when I was a greenhorn.  I wondered as I printed the decision what could possibly be going on in that case more than 20 years since the fire.

It turns out that the court has distributed all of the settlement funds that it can, but there are still some class members or their heirs who cannot be located.  In fact, the court is sitting on $126,977.49 of unclaimed funds.  This decision shuts the books on the litigation and disburses the remaining funds.

How, you might ask?  Well, first the court makes itself comfortable that it can ignore the unclaimed property statutes.  Sitting in equity over a pot of class action proceeds, the court decides that it can disburse the money as it sees fit, without having the funds escheat to the government.  Id. at *1.

Then, it introduces the cy pres doctrine, which originally was created by courts presiding over trusts where achieving the original purpose was no longer possible.   The good folks over at Drug and Device Law previously have posted an excellent discussion of why cy pres recovery is incompatible with class action litigation.  Nevertheless, the court in the Dupont Hotel Fire was determined to use the cy pres doctrine to distribute the money remaining in its coffers. 

As Judge Raymond Acosta observed, "cy pres" actually means "as near as possible."  Id.  So what "as near as possible" charity did Judge Acosta pick to receive the unclaimed settlement funds from the hotel fire litigation? 

Was it, perhaps, the National Fire Protection Association -- a non-profit organization that, since 1889, has been advocating consensus fire codes and standards and promoting fire education?  Maybe the International Association of Fire Chiefs, which helps educate and advocate for career and volunteer fire safety personnel?  The American Red Cross, which provides domestic disaster relief in situations like hotel fires?  The Disaster Relief Fund at the Corporation for National and Community Service, which coordinates volunteers from across the country to assist in disaster relief efforts in response to fires?  Or even a local fire service organization or disaster relief organization in Puerto Rico? 

None of the above.  Instead, the nearly $127,000 went to . . .

The Animal Legal Defense Fund. 

Notably, the court appeared to expect criticism for not giving the money to a charity in Puerto Rico, and conceded that its distribution may not have been the best one:

[W]e conclude that, while use of funds for purposes closely related to their origin might be the best application, the cy pres doctrine and the courts' broad equitable powers now permit use of these funds for other public interest purposes by either educational, charitable, or other public service organizations, both for current programs or to constitute an endowment and source of future income for long-range programs.

Id. at *2.  And, the court notes, it had an application from the ALDF asking for the funds.  So, voila!  ALDF -- headquartered in California -- gets the money.

Now don't get me wrong.  I looooove animals.  In fact, here is a gratuitous picture of my dog, Ted:

But what the Sam Hill does the ALDF have to do with a hotel fire?!!!  Surely the laudable work done by the ALDF is not "as near as possible" to the purpose of class action funds that were collected to compensate people injured in a hotel fire.

This decision is destined to be cited by some advocates as yet another instance of class action cy pres distribution gone terribly wrong.

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Although not within the technical bailiwick of this blog, I thought it was worthwhile to point out the Delaware Chancerty Court's recent decision in Viking Pump, Inc. v. Century Indemnity Co., Civ. A. No. 1465-VCS, Slip op. (Del. Ch. Oct. 14, 2009).  In Viking Pump, two corporate purchasers of a pump manufacturing business sought to use excess insurance coverage previously purchased by the seller to cover asbestos claims for exposures that occurred during the period when the seller owned the business.  The contracts of sale had transferred to plaintfifs the right to make claims.  The policies, however, had sought to prevent such a transfer. 

The court held that New York law overrides the policy provisions preventing post-loss assignments of the right to make a claim.  In other words, where the exposure occurred while the seller owned the business, the subsequent purchasers could bring the claims, regardless of how the contract was worded.  Moreover, the court interpreted the polcies to make the insurer liable for "all sums" of the liability arising from an occurrence during the policy's coverage, including occurrences involving multi-period exposure.  (The insurers had argued for a pro rata method of allocation.)

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Previously, I challenged my readers to outline the motion to dismiss a class action complaint filed by a disgruntled student who failed to get into the University of Illinois.  Knowing that lawyers do not compete without a prize, I offered the winner a copy of the newly-released book by the late John Mortimer, A RUMPOLE CHRISTMAS:  STORIES.  I am told by Amazon.com that the book is in transit to me even as I type this.

You have only one day left to enter!  At midnight on Halloween my e-mail box will close, and I will judge the entries in a candy-induced mania on Sunday.  You will get to read the winning entry and learn more about the winner on Monday.

Get those entries in quickly!  And have a Boo-tiful weekend.

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The US Chamber Institute on Legal Reform released an important report on third-party litigation financing in the United States today, which you can download here.  The report was written by my Skadden colleagues John Beisner, Jessica Miller, and Gary Rubin.

The authors conclude that third-party financing not only increases the volume of litigation generally, but also increases litigation of questionable merit.  They suggest that third-party financing should be banned in aggregate litigation becuase it further dilutes the role of the claimants themselves in such cases.  And they detail Austrailia's experience with third-party litigation financing.

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One of the first issues I litigated in my career as a mass torts lawyer involved a woman injured while disembarking an aircraft in China.  The primary issue was whether the doctrine of forum non conveniens could be invoked by an air carrier where the treaty that governs personal injury suits by air passengers, the Montreal Convention -- or, formally, the Convention for the Unification of Certain Rules for International Carriage by Air -- allows for venue in the United States.  We won.  See Lu v. Air China Int'l Corp., 1992 WL 453646 (E.D.N.Y. Dec. 16, 1992).  And I received a free trip to China from a grateful client to attend a party in the Great Hall of the People celebrating their corporate restructuring.

It's over 15 years later, and the Eleventh Circuit has just reached the same conclusion:  the Montreal Convention's venue provisions do not preclude the application of forum non conveniens rules.  See Guyard v. Newvac Corp., No. 07-15828, Slip op. (11th Cir. Oct. 8, 2009).  I doubt I'll get a free trip to Martinique for writing a blog post about this decision, but you can't blame a guy for trying.

A West Caribbean Airways flight carrying Martinique citizens crashed in the mountains of Venezuela.  Newvac, an American company, had chartered the West Caribbean plane for round-trip flights from Martinique to Panama and had contracted with a travel agency to market them to Martinique residents.

The Montreal Convention has a jurisdictional provision that allows for claims resulting from the death or injury of a passenger to be brought in a variety of countries, including, importantly, the "carrier's" domicile and principal place of business.  Although the Convention's jurisdictional provision does not define the term "carrier," elsewhere the Convention distinguishes between an "actual carrier" and a "contracting carrier," making the contracting carrier subject to the Convention's rules for the "whole of the carriage contemplated in the contract," while the actual carrier is subject to such rules "solely for the carriage which it performs."  Slip op. at 8.  The district court had concluded (and the Eleventh Circuit implicitly affirmed) that under the Montreal Convention, the case could properly be brought in the United States because Newvac was the contracting carrier and this was its domicile and principal place of business.

Newvac, however, moved for forum non conveniens dismissal, arguing that the evidence and witnesses pertaining to damages were in Martinique, and thus suit should be brought there.  Plaintiffs argued that because the Montreal Convention conferred jurisdiction on the United States, the court was bound by the treaty to exercise it and was without the power to use forum non conveniens to decline jurisdiction.

Article 33(4) of the Montreal Convention provides that "[q]uestions of procedure shall be governed by the law of the court seised of the case."  The Eleventh Circuit held that "forum non conveniens is a 'question of procedure' under U.S. law and thus it clearly falls within the ambit of Article 33(4)."    Slip op. at 10.  Plaintiffs argued that applying forum non conveniens to divest the U.S. of jurisdiction would undermine the purpose of the Convention's jurisdictional provisions.  The Eleventh Circuit disagreed, finding that "the purpose of the Convention is adequately safeguarded under traditional forum non conveniens analysis."  Id. at 11.  Because there was no ambiguity or limitation in the express language of Article 33(4), the Eleventh Circuit held that all questions of procedure are governed by the rules of the forum state and a district court may, where appropriate, exercise its discretion to apply forum non conveniens "so long as another Convention jurisdiction is available and can more conveniently adjudicate the claim."  Slip op. at 11-12.

The Eleventh Circuit then moved on to analyze whether the district court abused its discretion in invoking forum non conveniens in this case, analyzing both the private and public interest factors.  No one contested that Martinique was an adequate alternative forum.  Plaintiffs argued, however, that their choice of forum was entitled to deference and the presumption of convenience.  The court noted that such deference is lessened where the plaintiffs are not U.S. residents.  Plaintiffs argued, however, that their choice of forum deserved greater deference than the typical non-resident's because the Convention conferred upon the U.S. jurisdiction over their claims.  The Eleventh Circuit ducked the question of precisely what deference such plaintiffs' choice is due, concluding that "the analysis cannot end with a presumption of convenience, but must address the actual convenience of the various available fora." 

The court noted that the greater deference given a U.S. resident's choice of forum stems from the assumption that she chose her home forum because it was convenient.  That was not the case here, however.  The defendants had conceded liability, so the sole issue at trial was to be damages.  It was undisputed that "all of the witness and documentary evidence regarding damages, as well as all or virtually all of the non-party factual witnesses, are located in Martinique, beyond the compulsory process of the district court."  Slip op. at 15.  Plaintiffs argued that they were willing to bear the extra expense to meet their burden of proof by bringing their evidence to Florida.  But the court noted that this failed to account for the ability of the defendants to prepare their defensive case. 

In analyzing the public interest factors, the court noted that although the U.S. has an interest in deterring the tortious conduct of its citizens, Martinique has a stronger interest in adjudicating actions to redress injuries to its citizens.  Particularly because the damages evidence was in French and was located in Martinique, the public interest factors weighed heavily in favor of Martinique as the forum:

[T]he United States' interest in adjudicating Plaintiffs' claims does not justify the enormous commitment of time -- both of the court and of jurors -- and other judicial resources that would be consumed by the presentation of live testimony and documentary evidence in a foreign language.  Finally, the district court found that although litigating third-party claims . . . would be more convenient in a U.S. forum than in Martinique, the burden of translation in Martinique with respect to these claims is not as great as the burden of presenting French damages evidence in the United States.  This is so because the Martinique court designated to hear Montreal Convention claims does so in writing only and will not hear testimony.  Thus, Defendants will not bear the burden of translating live testimony in Martinique as both parties would in the United States.

Slip op. at 18.

Ultimately, the Eleventh Circuit concluded that the district court did not abuse its discretion in applying the public and private interest factors to dismiss the case in favor of a Martinique forum under the common law doctrine of forum non conveniens.

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Well the names have all changed since you hung around,

But those dreams have remained and they're turned around.

Who'd have thought they'd lead ya . . .

Here where we need ya?

Yeah we tease him a lot 'cause we've got him on the spot.

Welcome back.

Welcome back, welcome back, welcome back.

John Sebastian, Welcome Back Kotter (1975).

This post marks my return to blogging after a five-month absence.  I suppose I owe you an explanation.  After all, what WAS I doing during all that time?!

I'd like to tell you that I was reprising Gabe Kaplan's role by filming the remake of the "Welcome Back Kotter" series for the CW.

But you're a bright audience, and somehow I doubt you'd believe me.  I don't make a very convincing Gabe Kaplan.

The simple truth is this:  in April I came down with a respiratory infection that, left misdiagnosed, worsened.  I even developed strep throat, which I thought was reserved for 12-year-olds.  I barely had the energy to work and crawl home to bed, where I seemed unable to get enough sleep. 

By the time I recovered sufficiently a few months later, I had lots of work to catch up on, it was summer, and no one was expecting frequent posts from me anymore.  It was nice having all that extra time.  And I got soft. 

But the Recovering Baptist's guilt set in.  Many of you contacted me.  Herrmann and Beck even blogged about my demise.  And I quickly realized that I was a better lawyer when I was blogging, because I was fully on top of recent developments and getting free therapy by sharing with you some of my outrage at these decisions.  Ultimately, by the end of July I had decided that I needed to get back on the horse.  (But, given that it was boating season, I figured I'd wait until Labor Day to begin performance on the back-to-school resolutions.)

So now I'm back, pencils sharpened.  Chastened and somewhat smarter, I hope. 

Here's what you can expect:  at least 3 posts a week on mass torts and consumer class actions topics.  Pictures from New York.  And a substitute blogger should I fall ill again.

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John Beisner and Jessica Miller have published an excellent new monograph with the Washington Legal Foundation entitled:  "LITIGATE THE TORTS, NOT THE MASS:  A Modest Proposal for Reforming How Mass Torts Are Adjudicated."  They, along with Professor Richard Nagareda of Vanderbilt Law School, do a great job of describing the difficulties presented by mass torts:  because personal injury cases generally are not aggregable into class actions, there are tremendous problems coordinating hundreds (or even thousands) of state and federal tort cases for discovery and trial, as well as effectively buying global peace if (and when) the time comes to actually settle them.

Beisner and Miller propose the following solutions:

1.  Require only minimal diversity for federal jurisdiction over mass torts in which there is an MDL proceeding.

2.  Improve case management by:  (a) expanding the use of fact sheets, (b) requiring all claimants to comply with Lone Pine orders, (c) advancing discovery on randomly-selected subsets of individual claims and then having single-plaintiff bellwether trials, and (d) imposing fee-shifting on counsel who file meritless or fraudulent claims.

3.  Effectively eliminate American Pipe tolling of statutes of limitations in mass tort cases.

4.  Promote global resolution of cases by:  (a) loosening Rule 23's certification requirements for settlement classes, (b) clarifying the ethics rules to make it clear that settlement provisions encouraging client participation and discouraging cherry-picking do not conflict with the attorney's ethical obligations, and (c) mandating pre-suit disclosures by plaintiffs' counsel of the potential conflicts that may arise from representing multiple plaintiffs.

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