Rhode Island’s Supreme Court recently adopted the forum non conveniens doctrine and dismissed multiple asbestos suits filed there by Canadian residents. Kedy v. A.W. Chesterton Co., 946 A.2d 1171 (R.I. 2008).
Rhode Island becomes one of the last states to recognize the doctrine, which is an increasingly important procedural aspect of many mass torts. Large numbers of nonresidents will often file suit in the so-called “magic” jurisdictions — judicial hellholes for defendants as coined by the American Tort Reform Association — even though these plaintiffs and the facts of their cases may have no significant relationship with the chosen jurisdiction. The state may be attractive to plaintiffs because of perception of the jury pool, or because of procedural advantages such as when its trial courts employ mass consolidations of multiple individual claims that pressure defendants to settle and limit the ability of courts and defendants to focus on the individual claims. E.g., State ex rel. Mobil Corp. v. Gaughan, 563 S.E.2d 419 (W.Va. 2002). And foreign plaintiffs in general may be attracted to U.S.-style remedies, damages, and procedures.
The forum non conveniens doctrine has been employed by courts to dismiss claims by foreign and out of state plaintiffs in mass torts. The principle allows a court to decline to exercise jurisdiction when the plaintiff’s chosen forum is significantly inconvenient and the ends of justice would be better served if the action were brought and tried in another forum. For example, in the In re Vioxx Products Liability Litigation, MDL No. 1657, 2006 WL 2504353 (E.D. La. Aug. 30, 2006), former Vioxx users from 11 foreign countries were dismissed from the MDL. Merck argued that the cases involve the prescription and use of Vioxx in foreign countries, and the drug was distributed under each nation’s unique regulatory and legal structure. The plaintiffs were injured abroad and the injury-causing conduct occurred abroad. The foreign courts offered adequate alternative forums; American courts would not have easy access to the foreign documents and witnesses related to the claims. Finally, trying the plaintiffs’ claims here in the U.S. risked disrupting the judgments of foreign regulatory bodies by imposing an American jury’s view of the appropriate standards of safety and labeling on companies marketing and selling drugs in those nations.
In recent years, tort reform efforts in some states have made an impact on filing of suits by nonresidents that would otherwise swamp their courts. Mississippi has undertaken a series of legislative and judicial reforms to limit the number of out-of-state asbestos claims. For example, the Mississippi Tort Reform Act of 2004 tightened venue provisions and joinder rules and expanded the ability of courts to transfer or dismiss claims under the doctrine of forum non conveniens. Miss. Code Ann. § 11-11-3. As a result of the reforms, the “courts of Mississippi will not become the default forum for plaintiffs seeking to consolidate mass-tort actions.” 3M Co. v. Johnson, 926 So. 2d 860, 18–19 (Miss. 2006). Similarly, Texas has expanded the power of courts to dismiss actions on forum non conveniens grounds. See Tex. Civ. Prac. & Rem. Code Ann. § 71.051.
Several Canadian residents sued in a Rhode Island court, seeking damages for injuries associated with workplace exposure to asbestos in Canada. Several defendants sought dismissal under the doctrine of forum non conveniens. The trial court denied the motion, noting that Rhode Island had not recognized forum non conveniens outside in the tort context, and accepting plaintiffs’ arguments that forum non conveniens has led to confusion and inconsistency in federal and state courts, and that the legislature is the appropriate body to adopt the doctrine.
The state supreme court noted that the doctrine of forum non conveniens is founded in considerations of fundamental fairness and sensible and effective judicial administration. The doctrine has been recognized by common law, statute or rule of civil procedure in most states. Legal commentators are in general agreement that most states follow the federal forum non conveniens test. See Davies, Time to Change the Federal Forum Non Conveniens Analysis, 77 Tul. L.Rev. 309, 315 (2002) (thirty states have “effectively identical” analyses to the federal test, and thirteen other states employ a “very similar” test); Robinson & Speck, Access to State Courts in Transnational Personal Injury Cases: Forum Non Conveniens and Antisuit Injunctions, 68 Tex. L.Rev. 937, 950 (1990) (thirty-two states recognized “something very closely resembling” the federal doctrine, and four other states indicated they would follow the federal doctrine).
The first prong of the forum non conveniens analysis requires a determination of the existence of an available and adequate alternative forum. Second, the court must determine the inconvenience of continuing in the plaintiff’s chosen forum by weighing private- and public-interest factors. The private interests of the litigants include the following factors: relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. (Citing Gulf Oil Corp., 330 U.S. at 508.)
Other factors that may be relevant to the private-interest assessment include the enforceability of a judgment in the alternative forum, and the advantages and obstacles to a fair trial. A plaintiff may not, by choice of an inconvenient forum, vex, harass, or oppress the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. The private interest of a plaintiff should be afforded more weight when the forum choice appears to be based on legally valid reasons such as convenience and expense. Conversely, the private interest of a defendant should be afforded more weight when a plaintiff’s choice of forum seems motivated by forum-shopping objectives such as tactical attempts to harness more favorable laws and damages remedies, taking advantage of jurisdictions with generous jury verdicts, or causing inconvenience and expense to a defendant.
Public interest factors include administrative difficulties for courts, that jury duty is a burden that ought not be imposed upon the people of a community which has no relation to the litigation; the local interest in having localized controversies decided at home; and the court in some other forum dealing with problems in conflicts of laws, and in law foreign to itself.
Application of the New Test
Applied here, the court noted that differences in discovery standards are not enough to establish the inadequacy of the forum. Although damages may be smaller in Canada, it was important that neither plaintiffs nor defendants in the underlying cases were residents of Rhode Island or domiciled there. Much of the evidence necessarily is in Canada; the injuries and treatment alleged occurred in Canada, where plaintiffs are residents. No witnesses, workplace sites, or any other relevant evidence appear to be situated in the state. Access to proof is clearly less convenient. Only Canadian courts have the legal power to compel the testimony of Canadian potential witnesses who are not under the control of any party. Furthermore, the likelihood that Canadian law would apply in these cases would place additional burdens upon the state court. Accordingly the foreign claims were dismissed.