Forum Non-conveniens and Choice of Law in New Jersey Asbestos Litigation

By Lisa M. Only, Esq.*

For years, many individuals believed that asbestos litigation in New Jersey would soon end. To the contrary, asbestos cases have continued to congest the court docket. According to the Special Master, Middlesex County had approximately 328 asbestos claims pending as of March 2013, a majority of which are complex malignancy cases that are being aggressively litigated. This was a slight decrease from the 339 asbestos claims pending in March 2012. In addition, the Honorable Ann G. McCormick recognized that the nature of asbestos cases had substantially changed in which 20 to 30 cases were no longer grouped and tried at the same time. There has also been an increase in non-industrial-exposed asbestos victims who had no direct exposure to asbestos through their employment, as well as lung cancer cases. Judge McCormick opined that with more cases being tried, the cases that have nothing to do with New Jersey create problems and preclude the court from trying cases that involve New Jersey residents.

On October 6, 2011, during a motion hearing in Payne v. American Biltrates, Inc., Judge McCormick addressed the issue of whether a bystander exposure case should be dismissed for forum non-conveniens when the plaintiff resided in the Commonwealth of Virginia, the plaintiff’s spouse resided in the Commonwealth of Virginia and the plaintiff’s spouse never worked in the state of New Jersey. Transcript of Oral Argument, Payne v. American Biltrates, Inc., (MID-L-6686-10). In granting the defendant’s motion to dismiss, Judge McCormick discussed the Yousef v. General Dynamics Corp., 16 A.3d 1040, 1043-1044 (N.J. 2011) case, where the plaintiffs resided and worked in New Jersey, the corporate defendant conducted business in New Jersey with the plaintiffs’ employer, and the automobile accident occurred in the Republic of South Africa. The trial court properly weighed the public interest and private interest factors in finding that New Jersey was not a “demonstrably inappropriate” forum and, therefore, did not abuse its discretion in denying the forum non-conveniens motion.

In weighing the public interest factors in Payne v. American Biltrate, Inc., Judge McCormick opined that Virginia law differed from New Jersey law and that Virginia provided an adequate forum for the parties. Transcript of Oral Argument, Payne v. American Biltrates, Inc., (MID-L-6686-10). Judge McCormick reasoned that, regardless of whether Virginia was a strict liability or negligence only state, Virginia was an adequate forum. Judge McCormick found that the plaintiff had no ties to New Jersey and there were many defendants in the case who were not based in New Jersey. Judge McCormick was interested in the public interest factors due to: (1) administrative difficulties, which follow from having litigation pile up in congested centers, rather than being handled at its origin; (2) the imposition of jury duties on members of the community having no relation to the litigation; (3) the local interest in the subject matter, such that affected members of the community may wish to view the trial; and (4) the local interest in having localized controversies decided at home.

In addressing the private interest factors in Payne, Judge McCormick noted the relative ease of access to the sources of proof. Transcript of Oral Argument, Payne v. American Biltrates, Inc., (MID-L-6686-10). The depositions were complete; however, there was no compulsory process to compel fact witnesses, treating doctors or co-workers to appear in person in New Jersey. The costs associated with the litigation would increase, and it would be more time consuming due to videotaped testimony. In addition, the court would have to explain Virginia law to a New Jersey jury regarding a case with a plaintiff who never set foot in New Jersey.

In September 2012, the Honorable Vincent LeBlon inherited the asbestos docket from the Honorable Ann G. McCormick in Middlesex County. To date, Judge LeBlon has not been presented with the issue of forum non-conveniens.

Overall, asbestos litigation remains a busy area of law, and based on recent court rulings, asbestos cases should be analyzed to ensure that these cases have been brought forth in the proper jurisdiction and that proper state law is applied. If a plaintiff lacks a connection to New Jersey, a motion should be filed prior to the completion of discovery. If a motion to dismiss for forum non-conveniens is filed on the eve of trial, the court will likely be less inclined to grant the motion.

*Lisa is an associate in our Cherry Hill, New Jersey, office who can be reached at 856.414.6016 or lmonly@mdwcg.com.

Defense Digest, Vol. 20, No. 1, March 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.