In re Union Carbide Corp. Gas Plant Disaster

• Decision Date: 10 June 1986
• Docket Number: Misc. No. 21-38 (JFK).
• Parties: In re UNION CARBIDE CORPORATION GAS PLANT DISASTER AT BHOPAL, INDIA IN DECEMBER, 1984.
• Court: U.S. District Court — Southern District of New York

634 F. Supp. 842

In re UNION CARBIDE CORPORATION GAS PLANT DISASTER AT BHOPAL, INDIA IN DECEMBER, 1984.

Misc. No. 21-38 (JFK).

United States District Court, S.D. New York.

May 12, 1986.

As Amended June 10, 1986.

Robins, Zelle, Larson & Kaplan, Minneapolis, Michael V. Ciresi, Bruce A. Finzen, Roberta B. Walburn, D.S. Sastri of counsel. Barrett, Smith, Schapiro, Simon & Armstrong, New York City, Gerald A. Novack, of counsel, for the Union of India.

Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, Ohio, Stanley M. Chesley, Phillip B. Allen, Jan Levien, of counsel, Bailey & Broder, New York City, F. Lee Bailey, Michael C. Zwal, of counsel, for individual plaintiffs.

Hoffinger, Friedland, Dobrish, Bernfeld & Hasen, New York City, Jack S. Hoffinger, of counsel, Liaison Counsel.

Kelley Drye & Warren, New York City, Bud G. Holman, William A. Krohley, Lisa E. Cleary, of counsel, for defendant.

Christic Institute, Washington, D.C., Rob Hager, Shelley D. Hayes, of counsel, for Amicus Curiae.

OPINION and ORDER

KEENAN, District Judge:

FACTUAL BACKGROUND

On the night of December 2-3, 1984 the most tragic industrial disaster in history occurred in the city of Bhopal, state of Madhya Pradesh, Union of India. Located there was a chemical plant owned and operated by Union Carbide India Limited ("UCIL"). The plant, situated in the northern sector of the city, had numerous hutments adjacent to it on its southern side which were occupied by impoverished squatters. UCIL manufactured the pesticides Sevin and Temik at the Bhopal plant at the request of, and with the approval of, the Government of India. (Affidavit of John MacDonald ("MacDonald Aff.") at 2). UCIL was incorporated under Indian law in 1934. 50.9% of its stock is owned by the defendant, Union Carbide Corporation, a New York corporation. (MacDonald Aff. at 1). Methyl isocyanate (MIC), a highly toxic gas, is an ingredient in the production of both Sevin and Temik. On the night of the tragedy MIC leaked from the plant in substantial quantities for reasons not yet determined.

The prevailing winds on the early morning of December 3, 1984 were from Northwest to Southeast. They blew the deadly gas into the overpopulated hutments adjacent to the plant and into the most densely occupied parts of the city. The results were horrendous. Estimates of deaths directly attributable to the leak range as high as 2,100. No one is sure exactly how many perished. Over 200,000 people suffered injuries—some serious and permanent —some mild and temporary. Livestock were killed and crops damaged. Businesses were interrupted.

On December 7, 1984 the first lawsuit was filed by American lawyers in the United States on behalf of thousands of Indians. Dawani et al. v. Union Carbide Corp., S.D.W.Va. (84-2479). Since then 144 additional actions have been commenced in federal courts in the United States. The actions have all been joined and assigned by the Judicial Panel on Multidistrict Litigation to the Southern District of New York by order of February 6, 1985, 601 F.Supp. 1035.

The individual federal court complaints have been superseded by a consolidated complaint filed on June 28, 1985.

The Indian Government on March 29, 1985 enacted legislation, the Bhopal Gas Leak Disaster (Processing of Claims) Act (21 of 1985) ("Bhopal Act"), providing that the Government of India has the exclusive right to represent Indian plaintiffs in India and elsewhere in connection with the tragedy. Pursuant to the Bhopal Act, the Union of India, on April 8, 1985, filed a complaint with this Court setting forth claims for relief similar to those in the consolidated complaint of June 28, 1985.

By order of April 25, 1985 this Court established a Plaintiffs' Executive Committee, comprised of F. Lee Bailey and Stanley M. Chesley, Esqs., who represented individual plaintiffs and Michael V. Ciresi, Esq., whose firm represents the Union of India. Jack S. Hoffinger, Esq., who represents individual plaintiffs, was appointed liaison counsel for the Plaintiffs' Executive Committee.¹

On September 24, 1985, pursuant to the Bhopal Act, the Central Government of India framed a "scheme" for the Registration and Processing of Claims arising out of the disaster. According to the Union of India's counsel, over 487,000 claims have been filed in India pursuant to the "scheme."

There presently are 145 actions filed in the United States District Court for the Southern District of New York under the Judicial Panel for Multidistrict Litigation's order of February 6, 1985, involving approximately 200,000 plaintiffs.

Before this Court is a motion by the defendant Union Carbide Corporation ("Union Carbide") to dismiss the consolidated action on the grounds of forum non conveniens.

DISCUSSION

The doctrine of forum non conveniens allows a court to decline jurisdiction, even when jurisdiction is authorized by a general venue statute. In support of its position that the consolidated action before the Court should be transferred to a more convenient forum within the Union of India pursuant to this doctrine, Union Carbide relies on the United States Supreme Court's decisions in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947) and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The plaintiffs cite numerous other lower United States federal court cases in their briefs and seek to distinguish the Supreme Court's decisions from this case. Of course, Gilbert and Piper are the touchstones in sorting out and examining the contentions of both sides to this motion on the various factors bearing on convenience.

Piper teaches a straightforward formulation of the doctrine of forum non conveniens. A district court is advised to determine first whether the proposed alternative forum is "adequate." This inquiry should proceed in the order followed below. Then, as a matter within its "sound discretion," Piper at 257, 102 S.Ct. at 266, the district court should consider relevant public and private interest factors, and reasonably balance those factors, in order to determine whether dismissal is favored. This Court will approach the various concerns in the same direct manner in which Piper and Gilbert set them out.

At this juncture, it would be appropriate to discuss the presumptions on a forum non conveniens motion. In Piper, the Court discussed its earlier finding in Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947), which suggested that a plaintiff's choice of forum was entitled to great deference when the forum chosen was the home of the plaintiff. This presumption was based on the fact that the choice of the home forum indicated a reasonable assumption that the choice was convenient. Koster at 524, 67 S.Ct. at 831. Conversely, the Piper Court found:

When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference.

Piper 454 U.S. at 256, 102 S.Ct. at 266 (footnote omitted).

In the case now before the Court, in which the plaintiffs, including the Union of India, are foreign, and share a home forum which is not the instant forum, the assumption that this forum is convenient is not completely reasonable. The foreign plaintiffs' choice of the United States forum "deserves less deference" than would be accorded a United States citizen's choice. This Court will apply the presumption in favor of plaintiffs' choice of forum with "less than maximum force." Piper at 261, 102 S.Ct. at 268. See note 23 at 864, infra.

1. Preliminary Considerations.

"At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum." Piper at 254, n. 22, 102 S.Ct. at 265, n. 22. The elements of that inquiry are set forth in Piper. First, the Court said, "ordinarily, this requirement will be satisfied when the defendant is `amenable to process' in the other jurisdiction." Piper at 254, n. 22, 102 S.Ct. at 265, n. 22, quoting Gilbert 330 U.S. at 506-507, 67 S.Ct. at 842. Gilbert states that the doctrine of forum non conveniens "presupposes at least two forums in which the defendant is amenable to process."

Extending the limited inquiry of Gilbert, the Piper Court delved into the relevance of the substantive and procedural differences in law which would be applied in the event a case was transferred on the grounds of forum non conveniens. The Piper Court determined that it was theoretically inconsistent with the underlying doctrine of forum non conveniens, as well as grossly impractical, to consider the impact of the putative transferee forum's law on the plaintiff in its decision on a forum non conveniens motion: "If conclusive or substantial weight were given to the possibility of a change in law, the forum non conveniens doctrine would become virtually useless." Piper 454 U.S. at 250, 102 S.Ct. at 263.²

The Court listed numerous practical considerations which led to its conclusion that an unfavorable change in law for plaintiff was not a relevant factor in the forum analysis. First, the Court observed that if the chance of a change in law were given substantial weight, choice of law questions would "become extremely important." Piper at 251, 102 S.Ct. at 263. U.S. courts would "have to compare the rights, remedies, and procedures available" within the two proposed alternative forums, to determine whether a disadvantageous change in law would occur upon transfer. Id. Since "the doctrine of forum non conveniens, however, is designed in part to help courts avoid conducting complex exercises in comparative law," the change in law analysis would subvert the doctrine itself. Id. Thus, a court engaged in the inquiry regarding the existence and adequacy of an alternative forum should not hinge its decision on an unfavorable change in...