The Texas Court of Appeals ruled last week that a trial court had erred in denying the defendants’ motion to transfer venue in a multi-plaintiff benzene lawsuit. Shell Oil Co. v. Baran, 2008 WL 2369030 (Tex.App.-Beaumont June 12, 2008).

Location, location, location – crucial factors in real estate and potentially in product liability litigation as well. While plaintiffs traditionally have the right to select the forum of their choice, such discretion is not unfettered. Venue rules, jurisdictional requirements, forum non conveniens, and removal possibilities, may all be considered by defendants to level the playing field.

The litigation in Baran involved the claims of multiple plaintiffs who sued more than 40 chemical and oil companies in Orange County, Texas, alleging they developed leukemia and other serious illnesses as a result of exposure to benzene, benzene-containing products, naptha, mineral spirits, petroleum distillates, methyl ethyl ketone, solvents, paints, primers, coatings, paint thinners, toluene and xylene. Among the specific injuries alleged were myelodysplastic syndrome, acute myelogenous leukemia and non-Hodgkin’s lymphoma.

Plaintiffs filed a “Motion to Sever and Motion to Consolidate,” in which they asked the court to sever each plaintiff’s claims into a separate proceeding, but to consolidate the cases for pre-trial discovery purposes only, which the trial court granted. But the trial court denied the defense motions to transfer venue as to each plaintiff. The moving defendants then filed an accelerated interlocutory appeal.

The court of appeals acknowledged that a plaintiff is generally permitted to choose venue first, and the plaintiff’s choice of venue cannot be disturbed if the suit is initially filed in a county of proper venue. In Texas, however, in a suit with multiple plaintiffs, each plaintiff must, independently of every other plaintiff, establish proper venue.

Plaintiffs relied upon the general venue statute, which provides that suit shall be brought in the county where all or a substantial part of the events or omissions giving rise to the claim occurred or in the county where the defendant’s principal office is located.  Plaintiffs alleged that all or a substantial part of the events giving rise to their cause of action occurred in Orange County, Texas, contending that each plaintiff alleged and offered prima-facie proof of a disease caused by cumulative exposures to defendants’ benzene containing products, which resulted in each plaintiff’s suffering an indivisible injury.  Because the injury was allegedly indivisible, plaintiffs argued, each arose out of the same transaction, occurrence, or series of transactions or occurrences even with multiple exposures.

Defendants specifically denied this allegation of venue, and the court agreed appellees provided insufficient facts to support this allegation, in their petition, or by way of affidavit or attachments supporting their same transaction or occurrence theory. In fact, plaintiffs did not plead this alleged venue fact in their original petition.

Plaintiffs’ other alleged basis for maintaining venue in Orange County was the allegation that DuPont had a principal place of business there. However, because plaintiffs sued multiple defendants, the trial court cannot maintain venue as to all of the other named defendants unless plaintiffs’ claims arose out of the same transaction, occurrence, or series of transactions or occurrences. Again, plaintiffs argued that their claims arose out of the same transaction, occurrence, or series of transactions or occurrences because they suffered from indivisible injuries. But they had not pled adequate facts to conclude that their claims arose from the same transaction or occurrence. Thus, the trial court erred in concluding that plaintiffs independently established venue in Orange County.

When a plaintiff files suit in a county where venue is not proper, the defendant may have the suit transferred to a proper venue. Thus claims against ConocoPhillips Company, and several other defendants, were transferred to Harris County, Texas. The trial court was directed to transfer all of plaintiffs’ claims and causes of action against Berryman Products, Inc. to Tarrant County, Texas, and to transfer all of plaintiffs’ claims and causes of action against Safety-Kleen Systems, Inc. to Collin County, Texas, and so forth.