Opinion
C.A. No. N12C-02-116 ASB
05-16-2012
IN RE ASBESTOS LITIGATION: DOUGLAS GEIER
Thomas C. Crumplar, Esquire Jacobs & Crumplar, P.A. Wilmington, Delaware Counsel for Plaintiffs Loreto P. Rufo, Esquire Rufo Associates, PA Hockessin, Delaware Defense Coordinating Counsel
MEMORANDUM OPINION
Appearances:
Thomas C. Crumplar, Esquire
Jacobs & Crumplar, P.A.
Wilmington, Delaware
Counsel for Plaintiffs
Loreto P. Rufo, Esquire
Rufo Associates, PA
Hockessin, Delaware
Defense Coordinating Counsel
JOHN A. PARKINS , JR., JUDGE
INTRODUCTION
Plaintiff was diagnosed with Mesothelioma last fall and filed suit in Delaware in February 2012. Defendants promptly moved to dismiss for forum non conveniens. The court held oral arguments and reserved judgment. In the meantime the court directed that Plaintiff's deposition move forward as scheduled to preserve his testimony. The issue before the court is whether a plaintiff who has had minimal to no contact with Delaware and has twice filed suit elsewhere neither of which is currently pending should have his case dismissed for forum non conveniens grounds. The court finds under Delaware's liberal forum non conveniens standard that it should not and therefore the motion is DENIED.
FACTS
Plaintiff, Douglas Geier, filed suit in the East Central Judicial District of North Dakota on April 28, 2009 for asbestosis and other asbestos-related diseases. On September 13, 2011 he was diagnosed with Mesothelioma. The same month he filed suit in Philadelphia, Pennsylvania. With the action still pending in North Dakota the Philadelphia court granted a motion on forum non conveniens grounds and dismissed the action on October 21, 2011. Plaintiff filed a motion for voluntary dismissal of the North Dakota action on December 6, 2011, which was later granted. Then on February 8, 2012 Plaintiff filed the present case which included a claim for Mesothelioma. Defendants filed the present motion to dismiss. Plaintiff admits Mr. Geier has no Delaware connections and has spent almost his entire life in North Dakota. The alleged exposure appears to have occurred in North Dakota.
Defendants argue this is a case of blatant forum shopping and having been forced to litigate the matter in multiple jurisdictions has and continues to be an overwhelming hardship. Defendants assert the court should apply the McWane standard, which they argue is applicable "when a defendant seeks a non conveniens dismissal of an action previously filed in another jurisdiction."Plaintiffs argue "Delaware courts do not necessarily recognize forum shopping as negative" and Defendants have not been subjected to overwhelming hardship. Plaintiffs assert the court should apply the Cryo-Maid standard.
See McWane Cast Iron Pipe Corp. v. McDonwell-Wellman Eng'g. Co., 263 A.2d 281, 284 (Del. 1970).
Motion to Dismiss for Forum Non Conveniens and in the Interest of Justice, at 4.
Plaintiffs' Response in Opposition to Defense Coordinating Counsel's Motion to Dismiss for Forum Non Conveniens and in the Interest of Justice, at 5.
See General Foods Corp. v. Cryo-Main, Inc., 198 A.2d 681, 684 (Del. 1964).
ANALYSIS
The court may grant a motion for forum non conveniens, despite having jurisdiction, "if 'considerations of convenience, expense, and the interests of justice dictate that ligation in the forum selected by the plaintiff would be unduly inconvenient, expensive or otherwise inappropriate.'" However, Delaware has a "liberal forum non conveniens standard that has evolved in the context of Delaware corporate and commercial litigation" and has been applied in mass tort cases as well. The Delaware Supreme Court has "articulate[d] a clear preference in favor of a plaintiff's choice of forum, particularly where there are no previously filed actions pending elsewhere." After considering several Supreme Court decisions on the issue, Judge Slights articulated the standard in Delaware:
S chultz v. Am. Med. Sys., C.A. No. N10C-05-218, at 3 (Del. Super. Aug. 23, 2010) (Johnston, J.) (quoting Monsanto Co. v. Aetna Cas. and Surety Co., 559 A.2d 1301, 1304 (Dep. Super. 1988)).
In re Asbestos Litig., 929 A.2d 373, 378 (Del. Super. 2006).
Id. at 380 (emphasis added) (citations omitted).
This preference has been expressed in the form of a presumption that the plaintiff's choice of forum will be respected unless the defendant carries the heavy burden of establishing that Delaware is not an appropriate forum for the controversy. To meet its burden, the defendant must establish that it would endure "overwhelming hardship" by litigating in Delaware. Stated differently, the defendant must demonstrate that this is one of the rare cases where the drastic relief of dismissal is warranted based on a strong showing that the burden of litigating in this forum is so severe as to result in manifest hardship to the defendant. This burden is intended to be substantial but not preclusive.
Id. at 380-81.
At the outset the court must determine whether to apply the McWane or Cryo-Maid standard. McWane is applied when there is a case pending in another jurisdiction and Cryo-Maid is applied when no other case is pending. The McWane court explained its decision was not in conflict with other forum non conveniens decisions of the Supreme Court because there was a case pending in another court. Addressing Cryo-Maid and other earlier cases, the McWane court explained "[w]e reaffirm out holding in those cases and the application of the established rules of forum non conveniens where . . . no other action in pending elsewhere between the same parties involving the same issues." Although Plaintiffs previously filed suit in North Dakota, they dismissed that suit prior to the Delaware filing. Therefore, there is no other action pending. Defendants argue the presumption that a plaintiff's choice of forum is appropriate applies to the initial filing of an action and a plaintiff who has twice before filed the same claims should no longer benefit form any such presumption. Defendants similarly argue they should not bare the burden to show overwhelming hardship. Defendants' citation does not address "the initial filing of an action," but rather it addresses a pending action. Delaware law consistently refers to pending cases and the court is aware of no decision applying a difference standard because other similar suits were previously filed and dismissed elsewhere. Accordingly, the court finds Cryo-Maid is the applicable standard to employ and the burden rests with Defendants to show overwhelming hardship.
McWane, 263 A.2d at 283-84.
Id. at 284.
Motion to Dismiss for Forum Non Conveniens and in the Interest of Justice, at 3 (citing Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Ref., LP, 777 A.2d 774, 778 (Del. 2001)).
See Mar-Land, 777 A.2d at 778. Defendants later cite two cases granting dismissal or stays for forum non conveniens in asbestos cases. In re: Asbestos Litig. Houseman-Riley, 2006 WL 1174028 (Del. Super.); In re Asbestos Litig. Flatt, C.A. No. 08C-04-266 ASB (Del. Super. Dec. 19, 2008) (Johnston, J.) (noting again both cases depended on the existence of a pending case elsewhere and thus are distinguishable from this case).
The ultimate test is whether Defendant will incur "overwhelming hardship" if forced to defend in Delaware. The hardship is measured by the Cryo-Maid factors. Cryo-Maid and its progeny establish six factors for consideration:
(1) the relative ease of access to proof; (2) the availability of compulsory process for witnesses; (3) the possibility of the view of the premises; (4) whether the controversy is dependent upon the application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction; (5) the pendency or nonpendency of a similar action of actions in another jurisdiction; and (6) all other practical problems that would make the trial of the case easy, expeditious and inexpensive.This court has previously employed these factors in the context of the asbestos litigation. The factors are not qualitative, but rather establish a framework for the court's analysis. "[T]he Court must base its determination solely upon 'whether any or all of the Cryo-Maid factors establish that defendant will suffer overwhelming hardship and inconvenience if forced to litigate in Delaware."
In re Asbestos Litig, 929 A.2d at 381 (citing Taylor v. LSI Logic Corp., 689 A.2d 1196, 1198-99 (Del. 1997); Cryo-Maid, 198 A.2d at 684; Parvin v. Kaufmann, 236 A.2d 425, 427 (Del. 1967)).
See In re Asbestos Litig, 929 A.2d at 381; Schultz, C.A. No. N10C-05-218, at 3; Lluerma v. Owens Illinois Inc., C.A. No. 04C-09-122ASB, at 20 (Del. Super. June 11, 2009) (Johnston, J.).
In re Asbestos Litig, 929 A.2d at 381 (citing Taylor, 689 A.2d at 1199).
In re Asbestos Litig, 929 A.2d at 381 (quoting Taylor, 689 A.2d at 1199).
Defendants' attempt to demonstrate overwhelming hardship is limited to one conclusory paragraph. Arguments similar to Defendants' have been rejected in similar cases because Delaware law requires particularize arguments here. "Bare allegations of hardship are insufficient." The court will briefly address the Cryo-Maid factors in light of this rule:
See Motion to Dismiss for Forum Non Conveniens and in the Interest of Justice, at 3-4.
The court recognizes the constraints of the applicable page limitations in the Master Trial Scheduling Order and will still address each factor.
Mar-Land, 777 A.2d at 780.
1. Defendants argue hardship because most of the witnesses and evidence are in North Dakota. This is typical in the current Delaware asbestos practice. "These defendants, who regularly face litigation in many states, have both the knowledge and means to locate and transport witnesses and evidence across state lines, particularly 'in an age where air travel, express mail, electronic data transmissions and videotaped depositions are
part of the normal course of business.'" Transportation and communication across distances have only become easier since these court decisions. Defendants have not met their burden of establishing overwhelming hardship for this factor.
2. Defendants argue hardship stemming from not being able to compel witnesses' cooperation with the assistance of North Dakota courts. Delaware law requires Defendants to specifically identify witnesses for this factor. Defendants have not done so. Regardless, Defendants in this litigation often handle witnesses from outside this jurisdiction. The court recognizes this causes some hardship, but that hardship is not overwhelming.
3. Defendants do not argue a view of a premises is needed. In an asbestos case where exposure occurred years ago, "[t]he necessity of a view of any site is not reasonably foreseeable."Any issues that arise under this factor are easily addressed through photographic evidence.
4. Defendants state North Dakota law applies here. This factor weighs somewhat in favor of dismissal, however that concern is ameliorated by the fact this court frequently applies foreign law
especially in asbestos cases. The determination is not whether the court will suffer hardship from an increased work load, but rather whether the defendants will suffer overwhelming hardship and Defendants have not met their burden here.
5. The non-pendency of another action was discussed above. "If not dispositive, this fact weighs heavily against dismissal."
6. Defendants argue this is blatant forum shopping. "[T]he Court cannot concern itself with the plaintiffs' subjective motivation in bringing their claims to Delaware," instead the court must focus on whether Defendant's will suffer overwhelming hardship.They have not done so.
In re: Asbestos Litig., 929 A.2d at 384 (quoting Sequa Corp. v Aetna Cas. and Sur. Co., 1990 WL 123006, at *5 (Del. Super); Travelers Indem. Co. v. Monsanto Co., 692 F.Supp. 90, 92 (D.Conn. 1988)).
In re: Asbestos Litig., 929 A.2d at 385 (citations omitted).
See Schultz, C.A. No. N10C-05-218, at 7.
Id. at 8.
See In re Asbestos Litig., 929 A.2d at 386.
Id. at 387 (quoting Taylor, 689 A.2d at 1199).
In re Asbestos Litig, 929 A.2d at 387 (citations omitted) (emphasis in original).
Id. at 388.
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Based on the court's analysis of the Cryo-Maid factors, the court does not find that Defendants will suffer overwhelming hardship. Accordingly, the motion is DENIED.
At oral arguments the court expressed concern about duplicative costs for Defendants based on Plaintiffs filing and voluntarily dismissing a similar suit to the one at bar in North Dakota. The court assured Plaintiffs they would have an opportunity to be heard regarding payment of costs under Superior Court Rule of Civil Procedure 41(d). The court will hear argument on this issue at the time set aside for hearing motions for summary judgment in June, which is currently scheduled to be June 28, 2012.
IT IS SO ORDERED.
__________________
Judge John A. Parkins, Jr.