Downs v. 3M Co.

• Decision Date: 05 January 2010
• Docket Number: C.A. PC 06-1710,PC 07-6435
• Parties: MARILYN DOWNS and ERIN DOWNS, a minor, v. 3M COMPANY, et al.; LISA KROSKOB and CRAIG KROSKOB v. AGCO, et al.
• Court: Rhode Island Superior Court

MARILYN DOWNS and ERIN DOWNS, a minor, v. 3M COMPANY, et al.;

LISA KROSKOB and CRAIG KROSKOB v. AGCO, et al.

C.A. Nos. PC 06-1710, PC 07-6435

Superior Court of Rhode Island

January 5, 2010

CONSOLIDATED DECISION

GIBNEY, J.

Before this Court are two motions to dismiss pursuant to the doctrine of forum non conveniens. The Plaintiffs in these matters object to the motions and request guidance from this Court as to the application of Rhode Island Supreme Court opinion Kedy v. A.W. Chesterton Co., 946 A.2d 1171 (R.I. 2008), to ongoing asbestos litigation. Due to similarities in the motions pending and the request for guidance in both matters, this Court has consolidated the cases. Jurisdiction is pursuant to G.L. 1956 § 8-2-14.

I Facts and Travel

The instant motions initially were brought by Defendant Fisher Scientific ("Fisher" or "Defendant Fisher") in the matter of Downs v. 3M Co., C.A. No. PC 06-1710, and numerous Defendants^1[] (hereinafter "Kroskob Defendants") in the matter of Kroskob v. AGCO C.A. No. 07-6435.^2[] The Defendants in the two matters pending before this Court will be referred to collectively as "Defendants." Lisa Kroskob, Craig Kroskob, Marilyn Downs, and Erin Downs all object to the motions and will be referred to collectively as "Plaintiffs."

None of these Plaintiffs are residents of Rhode Island. Each has alleged serious injury as the result of his or her, or a family member's, exposure to an asbestos product or products designed, manufactured, or distributed by respective Defendants. None of the Plaintiffs alleges that his or her specific injury occurred in Rhode Island. In each matter, the case has been pending before this Court for an appreciable length of time. Discovery and motion practice processes have been ongoing. The Defendants contend that these matters should be dismissed pursuant to Rhode Island's recently adopted doctrine of forum non conveniens. The Plaintiffs object, maintaining that Rhode Island is a proper venue; no adequate alternative forum exists; and the burden to the Plaintiffs caused by dismissing the cases would outweigh the benefit to the Defendants of having the cases brought in an allegedly more convenient forum.

Certain key facts are important to note in each of the individual cases. In the Downs matter, Marilyn Downs ("Ms Downs") and her minor child, Erin Downs, filed a complaint in this Court on March 24, 2006, alleging inter alia, that Ms. Downs suffered asbestos-related injuries after working as a general laborer on a corn farm in Nebraska in 1979. Defendant Fisher contends that Ms. Downs became ill, was diagnosed, and was treated in Nebraska. In September 2007, Fisher filed a motion to dismiss on the grounds of forum non conveniens, as well as a notice of intent to apply Nebraska law. Argument on the motion to dismiss was heard by this Court on June 25, 2008. The Defendant's contentions followed the analysis as set forth in Kedy and concluded that Nebraska is the more convenient forum for this now three-year-old case.

In the Kroskob matter, Lisa Kroskob and her husband, Craig Kroskob, filed a complaint in this Court on December 3, 2007, alleging that Ms. Kroskob suffered serious injuries as the result of exposure to asbestos products while working on her farm in Colorado, attending church in a building in Colorado, and working in a cafeteria in a local Colorado school, all of which contained asbestos. The Defendants filed or joined motions to dismiss for forum non conveniens on the following dates: June 4, 18, and 24, 2008; July 7 and 18, 2008; February 2 and 10, 2009; July 29, 2009; August 19, 2009; and September 21 and 30, 2009.^3[] The Defendants in this matter contend, among other things, that the Kroskobs' case is uniquely centralized in Colorado, with over twenty-five potential witnesses to be deposed and sites to be inspected all located in Colorado. They further contend that Colorado is a particularly adequate alternative due to a statute permitting plaintiffs who have been diagnosed with diseases for which death is imminent to be heard within 120 days of filing.

II Standard of Review

The Rhode Island Superior Court may hear a matter if jurisdiction and venue are proper. See Kedy, 946 A.2d at 1179 & nn.6–7. Under G.L. 1956 § 8-2-14, the Superior Court has original jurisdiction of actions at law if the amount in controversy exceeds $10,000. Pursuant to the venue provisions of the General Laws, venue is proper in Superior Court even if the plaintiffs and defendants are nonresidents. See G.L. 1956 § 9-4-5 (stating "[i]f no one of the plaintiffs or defendants dwell within the state, and a corporation established out of the state be a party, personal or transitory actions or suits by or against it may, if brought in the superior court, be brought in the court for any county").

The doctrine of forum non conveniens permits "a court [to] resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Kedy, 946 A.2d at 1178 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947)). The doctrine is "founded in considerations of fundamental fairness and sensible and effective judicial administration" and may be used by the trial courts to achieve the "orderly and expeditious disposition of cases." Id. at 1179, 1180 (citations omitted). Essentially, "a court may 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." Id. at 1178. There is "much discretion" to grant or deny a motion for dismissal for forum non conveniens, and a trial court's decision is reviewed under an abuse of discretion standard. Id. at 1185–86. The decision will be upheld if the court has considered all relevant public and private factors and has balanced these factors reasonably. Id. at 1186.

III Analysis

Prior to the 2008 landmark opinion of Kedy v. A.W. Chesterton Co., the Rhode Island Supreme Court had not ruled on or discussed the common law doctrine of forum non conveniens. See id. at 1177–78. In Kedy, the Rhode Island Supreme Court formally adopted the doctrine and applied it in a manner patterned after the federal rules. Id. at 1182. The decision in Kedy— which determined that thirty-nine Canadian asbestos cases should be dismissed under the newly-adopted doctrine—is instructive on the application of forum non conveniens in this jurisdiction. Id. at 1189. Subsequent to the Kedy decision, the trial court is granted an opportunity to test facts against this law and to work through the nuances of its application in other matters. See Millipore Corp. v. Travelers Indem. Co., 115 F.3d 21, 34 (1st Cir. 1997) (holding that where the appellate court has determined a different law applies to the case, the initial judgments regarding the facts are best made by the trial court); Vicknair v. Formosa Plastics Corp., 98 F.3d 837, 839 (5th Cir. 1996) (holding it prudent to afford the trial court the first opportunity to apply a new law to the facts of a case).

In this Consolidated Decision, this Court addresses how the Kedy opinion affects the matters immediately before it and endeavors to provide some guidance for the forum non conveniens motions that may follow. Accordingly, this Court will first describe the forum non conveniens analysis set out by Kedy and then apply the Kedy analysis to the specific facts raised in the instant motions.

A Kedy

In formally acknowledging the common law doctrine of forum non conveniens, the Rhode Island Supreme Court held that this State would follow the majority of its sister states by adopting a test for forum non conveniens similar to the federal doctrine. Kedy, 946 A.2d at 1182. Generally, the threshold step before proceeding to any forum non conveniens analysis requires a trial court to establish that jurisdiction and venue in the present forum are proper. Id. at 1183 (stating that the court first determines the existence of valid jurisdiction and venue, but noting that forum non conveniens dismissal may be appropriate before making a jurisdictional determination if "discovery concerning personal jurisdiction would burden a defendant with expense and delay for a 'scant purpose'").^4[] Once valid jurisdiction and venue are confirmed, the trial court then embarks on a two-pronged analysis to determine whether forum non conveniens dismissal is warranted. Id. "First, the court must decide whether an alternative forum exists that is both available and adequate to resolve the disputed legal issues . . . Second, the court must determine the inconvenience of continuing in the plaintiff's chosen forum by weighing private-and public-interest factors." Id.

The first prong requires that the trial court make a dual determination: (1) whether the suggested alternative forum is available and (2) whether the alternative forum is adequate. Id. "The availability of an alternative forum rests upon whether 'the defendant is amenable to process in the other jurisdiction.'" Id. (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n.22 (1981)). To ensure that this requirement is met, the trial court may "condition a dismissal upon the defendant's consent to submit to jurisdiction in an alternative forum." Id. Next, the trial court determines whether the alternative forum is adequate. Id. at 1184. For example, even an unfavorable change of substantive law will not automatically render the alternate forum inadequate. Id. As long as the remedy provided by the alternate forum is not "so clearly inadequate or unsatisfactory that it is really no remedy at all," then the alternate forum is adequate. Id. (quoting Piper Aircraft Co., 454 U.S at 254). Concerns such as the...