Opinion
Docket No. 62874.
Decided October 30, 1984.
Arthur L. Petersen, for plaintiffs.
Kitch, Suhrheinrich, Smith, Saurbier Drutchas, P.C. (by Paul L. Kaliszewski and Michael R. Mosher), for defendant.
Plaintiffs appeal as of right from a Wayne County Circuit Court order dismissing these consolidated actions on the ground of forum non conveniens. Plaintiffs, insulation workers and their wives, alleged that defendants were responsible for their injurious exposure to asbestos and other materials. The circuit court declined jurisdiction, concluding that Wisconsin was a more convenient forum. We affirm.
Plaintiffs are residents of Wisconsin. They alleged that the exposures to asbestos and other materials occurred while plaintiff husbands worked as insulation applicators in Wisconsin and Michigan. Defendants are manufacturers, distributors, and sellers of insulation. According to plaintiffs, defendants negligently caused plaintiff husbands to come in contact with the dangerous substances, resulting in severe physical problems, disability and related damages. Plaintiffs also claimed breach of warranty and civil conspiracy.
Defendants moved to decline jurisdiction, noting as follows: that plaintiff husbands' medical records and other information were in Wisconsin, beyond the court's subpoena powers; that many witnesses, including most or all of the nonparty witnesses, were not in Michigan; that a small percentage (10-20 percent) of plaintiff husbands' job sites were in Michigan, none were in Wayne County, and those in Michigan were, without exception, in the upper peninsula, more accessible to Wisconsin than the lower court in Michigan; that plaintiffs resided in Wisconsin and plaintiff husbands worked out of and received assignments at a union located in Wisconsin, both presently and when the exposures occurred; and that plaintiff husbands received their medical care in Wisconsin. Defendants argued there was no meaningful nexus between the litigation and Michigan, and convenience to the parties dictated that the court decline jurisdiction.
Plaintiffs responded that trial would be more inconvenient in Wisconsin because of transportation problems and because there were no other asbestos cases there with which the present cases could be consolidated. Plaintiffs further argued that, based on trial statements by defendants in other asbestos cases in Wayne County, trial would center on certain repetitive issues, such as intensity of exposure to asbestos and type of asbestos used. Witnesses from throughout the nation would be called. Plaintiffs asserted that Michigan exposures were substantial and that much of plaintiff husbands' work in Michigan involved high temperature applications, which involve a particularly lethal form of asbestos.
Plaintiffs claimed they lacked a forum in Wisconsin because it would be difficult to obtain jurisdiction over as many defendants there as in Michigan. No mention was made of any Wisconsin statute of limitations.
The circuit court dismissal of these cases was conditioned on an agreement by defendants to submit to Wisconsin jurisdiction and to stipulate to tolling of any Wisconsin statute of limitations for the period since plaintiffs commenced this litigation in Michigan. In a written opinion, the court explained its decision as follows:
On appeal, defendants have filed an updated stipulation to the same effect.
"Notwithstanding the presence in Michigan of some potential factual witnesses who would testify about plaintiffs' exposure to asbestos-contained products in Michigan, the far greater concentration of sources of cogent discovery and trial evidence available through compulsory process, e.g. factual witnesses concerning out-of-state employments and exposures, medical witnesses and documentation, is in the State of Wisconsin where the accrual of plaintiffs' causes of action in whole or in part — occurred.
"Plaintiffs' and defendants' expert witnesses relative to the hazards to human health resulting from exposure to asbestos-contained products and so-called state of the art witnesses are variously located throughout the United States.
"None of the known witnesses to be called at trial reside in Wayne County. * * *
"Fairness, convenience and the efficient administration of justice to litigants and witnesses dictates that these proceedings be dismissed and that plaintiffs' claims be litigated in a Wisconsin forum."
Application of the doctrine of forum non conveniens is within the discretion of the trial judge. Dayton Mall Motor Inn v Honeywell, Inc, 132 Mich. App. 174, 178; 347 N.W.2d 15 (1984). The Supreme Court adopted the doctrine in Cray v General Motors Corp, 389 Mich. 382, 396; 207 N.W.2d 393 (1973), stating: "It is within the discretion of the trial judge to decline jurisdiction in such cases as the convenience of the parties and the ends of justice dictate." The trial judge should consider the following criteria, although they are not all inclusive:
"1. The private interest of the litigant.
"a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;
"b. Ease of access to sources of proof;
"c. Distance from the situs of the accident or incident which gave rise to the litigation;
"d. Enforcibility [sic] of any judgment obtained;
"e. Possible harassment of either party;
"f. Other practical problems which contribute to the ease, expense and expedition of the trial;
"g. Possibility of viewing the premises.
"2. Matters of public interest.
"a. Administrative difficulties which may arise in an area which may not be present in the area of origin;
"b. Consideration of the state law which must govern the case.
"c. People who are concerned by the proceeding.
"3. Reasonable promptness in raising the plea of forum non conveniens." Cray, supra, pp 395-396; Dayton Mall, supra, pp 178-179.
One of the factors of "public interest" herein is the congested docket of the Wayne Circuit Court. Anderson v Great Lakes Dredge Dock Co, 411 Mich. 619, 631; 309 N.W.2d 539 (1981); Hamann v American Motors Corp, 131 Mich. App. 605, 609-610; 345 N.W.2d 699 (1983). We do not suggest that the judges of that circuit use their backlogs, standing alone, as justification for dismissal of any litigation with a foreign tinge. Nevertheless, where a plaintiff's interest in a forum is slight, the plaintiff's choice of forum is entitled to less weight. Anderson, supra, pp 628-629.
In this case, the trial judge carefully weighed "the relative advantages and disadvantages of jurisdiction and the ease of and obstacles to a fair trial in this state". Cray, supra, p 396. We conclude that he committed no abuse of discretion by declining jurisdiction. There is only a slight nexus between this litigation and the chosen forum. Anderson, supra, p 629.
Application of the doctrine of forum non conveniens presupposes that two courts can obtain jurisdiction. Anderson, supra, p 628; Cray, supra, p 395; Restatement Conflict of Laws, 2d, § 84. On appeal, plaintiffs for the first time assert that their claims are barred in Wisconsin by a three-year statute of limitations. Wis Stat, § 893.54. We decline to address this issue. While the rule forbidding consideration of issues first raised on appeal is not written in stone, such consideration is impossible where the necessary facts are not before us. Loper v Cascade Twp, 135 Mich. App. 106, 111; 352 N.W.2d 357 (1984). The Wisconsin Supreme Court recently held that tort claims accrue, not at the time of the injury but, "on the date the injury is discovered or with reasonable diligence should be discovered". Hansen v A H Robins, Inc, 113 Wis.2d 550, 560; 335 N.W.2d 578, 583 (1983). There is nothing in the record regarding when plaintiffs discovered or should have discovered their alleged injuries. Moreover, in view of the stipulation by defendants that the Wisconsin statute is tolled from the date plaintiffs commenced this litigation, plaintiffs' cases are in no greater peril in Wisconsin than in Michigan in this respect. See, MCL 600.5805(9); MSA 27A.5805(9); Connelly v Paul Ruddy's Equipment Repair Service Co, 388 Mich. 146, 150; 200 N.W.2d 70 (1972).
Affirmed.