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

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.

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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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Increasingly, foreign plaintiffs want to use US courts to adjudicate disputes that arose overseas.  The Texas Court of Appeals' decision in Lalila v. Parker Drilling Co., 2009 WL 618248 (Tex. App. -- Houston [1st Dist.] Mar. 12, 2009), is a good example of a court's use of the doctrine of forum non conveniens to control its docket and avoid adjudication of such disputes.

In Lalila, 766 Bangladeshis sued a number of defendants in Texas state court over two gas well explosions in Tangratila, Bangladesh, asserting causes of action in negligence, nuisance, trespass, and conversion.  The Texas defendants moved to dismiss for forum non conveniens.  The trial court granted the motion, which the appellate court reviewed for abuse of discretion.

Texas is one of the few states to have codified the rules relating to forum non conveniens.  That statute provides that if an act or omission occurring in Texas was a proximate or producing the injury, then forum non conveniens dismissal is not available.  The court noted, however, that both proximate and producing cause require "causation in fact," which "means the defendant's act or omission was a substantial factor in bringing about the plaintiff's injury, which would not otherwise have occurred."  The court reviewed the various acts that plaintiffs alleged occurred in Texas (design of the rig and parts, negligent supervision of the gas well project), concluding that plaintiffs' complaint never connected them up to the injuries suffered in Bangladesh in such a way as to meet the "causation in fact" requirement.

The court then proceeded to evaluate Bangladesh as a forum.  The court rejected plaintiff's criticism of the courts as corrupt, saying the evidence was based on hearsay from only three Bangladeshi attorneys.  The court gave little weight to the fact that Bangladeshi courts do not have a class action procedure, noting that it has joinder and is a judicial system based on English common law that has the types of torts asserted by Lalila.

The court also noted the legal inability and prohibitive costs of bringing witnesses from Bangladesh and translating their testimony, as well as the fact that the vast majority of evidence resides in Bangladesh.  The court concluded that the balance of public and private interests clearly weighed in favor of Bangladesh.  And thus, the court concluded that the trial court did not abuse its discretion in dismissing the case for foreign non conveniens.

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