Hess v. Norfolk S. Ry. Co.

• Decision Date: 07 August 2003
• Docket Number: No. 80717.,80717.
• Citation: 795 NE 2d 91,153 Ohio App.3d 565
• Parties: HESS et al., Appellees, v. NORFOLK SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Ohio Court of Appeals

153 Ohio App.3d 565

2003-Ohio-4172

795 NE 2d 91

2003-Ohio-4172

HESS et al., Appellees, v. NORFOLK SOUTHERN RAILWAY COMPANY, Appellant.

No. 80717.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided August 7, 2003.

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Wallace and Graham, P.A., and Christopher J. Hickey; Kevin E. McDermott and Mary Brigid Sweeney, for appellees.

Gallagher, Sharp, Fulton & Norman, Kevin C. Alexandersen, Michael J. Pike and Monica A. Sansalone; Burns, White & Hickton and David A. Damico, for appellant.

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FRANK D. CELEBRAZZE, JR., Judge.

{¶ 1} The appellant, Norfork Southern Railway Company, appeals from several interlocutory rulings made by the trial court during asbestos litigation and seeks a review of the jury verdict entered in favor of the appellees.

{¶ 2} On August 25, 1999, a Master Consolidated Complaint was filed in the Cuyahoga County Court of Common Pleas pursuant to the Federal Employers Liability Act ("FELA") against Norfolk Southern Railway Company¹ (hereinafter "Norfolk" or "appellant"), on behalf of 27 employees who allegedly sustained injury as a result of asbestos exposure while working at the Spencer Railroad Shop in North Carolina. The following appellees, Lee McAdoo Hess² (case No. 398614), Charlie Leon Miller (case No. 390336), Lester L. Poe Sr. (case No. 390352), and Baxter Lovelace Wyatt (case No. 390337) ("appellees"), were consolidated for the purpose of trial pursuant to Civ.R. 42(A). Appellees Poe, Miller, and Wyatt died from lung cancer³ prior to trial. Appellee Hess died from lung cancer shortly after the conclusion of the trial.

{¶ 3} The consolidated trial commenced on October 1, 2001. The jury returned individual verdicts in favor of the appellees on October 15, 2001. The appellant thereafter filed a motion for a new trial or in the alternative a motion for remittitur of damages. The appellees filed a motion for additur. The appellant's motion for a new trial was denied and the motion for remittitur was granted. Appellee Poe's motion for additur was also granted.

{¶ 4} On December 7, 2001, the trial court amended the jury's damage award as follows:

{¶ 5} The jury awarded Hess $1,070,000, which was reduced because of a remittitur of $129,004.11 in medical expenses. The jury found Norfolk was 75 percent responsible for Hess's injuries. The total award given to Hess was $705,746.92.

{¶ 6} The jury awarded the estate of Miller $510,000, which was reduced because of a remittitur of $12,292.23 in medical expenses. The jury found Norfolk 50 percent responsible for Miller's injuries. The total award given to the estate of Miller was $248,853.88.

{¶ 7} The jury awarded the estate of Poe $570,000, which was increased by an additur of $74,687.38 in medical expenses. The jury found Norfolk 50 percent responsible for Poe's injuries. The total award given to the estate of Poe was $322,243.69.

{¶ 8} The jury awarded the estate of Wyatt $905,000, which was reduced because of a remittitur of $124,966.42 in medical expenses. The jury found Norfolk 75 percent responsible for Wyatt's injuries. The total award given to the estate of Wyatt was $585,025.18.

{¶ 9} The appellant presents eight assignments of error for this court's review.

{¶ 10} "I. The trial court erred when it overruled appellant's motion to dismiss on the ground of forum non conveniens."

{¶ 11} After the Master Complaint was filed, the appellant moved the trial court to dismiss the case based on forum non conveniens. Appellant argued that the proper venue was North Carolina, not Ohio, because the appellees' medical information, trial witnesses, and the railroad work sites at issue were located in North Carolina. The trial court overruled the motion, holding that the appellant does conduct business in Cuyahoga County, Ohio, fulfilling FELA requirements, and based on the evidence submitted, the forum was not inconvenient.

{¶ 12} All four appellees resided outside Ohio. The appellees were employed by the appellant for various positions in Spencer, North Carolina. The appellant is a Virginia corporation. Under the Federal Employers' Liability Act ("FELA"), Section 56, Title 45, U.S.Code (2003), "an action may be brought in a district court of the United States, in the district of the residence of the defendant or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of courts of the several States." FELA permits the filing of an action by an injured railroad worker wherever the railroad conducts business. The trial court took judicial notice that Norfolk does business in Cuyahoga County, Ohio; therefore, under FELA, jurisdiction and venue are proper.

{¶ 13} In Chambers v. Merrell-Dow Pharmaceuticals, Inc. (1988), 35 Ohio St.3d 123, 519 N.E.2d 370, the Supreme Court of Ohio adopted the doctrine of forum non conveniens, which provides that, notwithstanding proper jurisdiction and venue, a trial judge has discretion not to exercise jurisdiction if the forum is seriously inconvenient for trial and if a more appropriate forum is available to the plaintiff. Id. The doctrine is designed to prevent a plaintiff from using a liberal venue statute to vex, oppress, or harass a defendant by bringing a suit in a forum unrelated to the parties or cause of action. Gulf Oil Corp. v. Gilbert (1946), 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. A plaintiffs choice of forum is not to be disturbed except for "weighty reasons," and the case should be dismissed only if the balance is strongly in favor of defendant. Id.

{¶ 14} The determination as to whether there is a more convenient forum for a given case is left to the sound discretion of the trial court. Chambers, supra. The decision of the trial court as to whether there is a more convenient forum for a given case will be reversed only upon a clear abuse of discretion. Id.

{¶ 15} To constitute an abuse of discretion, the ruling must be more than legal error; it must be unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140. "`The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations.'" State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 15 OBR 311, 473 N.E.2d 264, quoting Spalding v. Spalding (1959), 355 Mich. 382, 384-385, 94 N.W.2d 810. In order to have an abuse of that choice, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Id.

{¶ 16} In determining whether there is a more convenient forum for the case before it, a trial court must balance all relevant public and private interest factors. The public interest factors include (1) the administrative difficulties and delay to other litigants, (2) the imposition of jury duty upon the citizens of a community that has very little relation to the litigation, (3) a local interest in having localized controversies decided at home, and (4) the appropriateness of litigating a case in a forum familiar with the applicable law. Id.

{¶ 17} Private interest factors include (1) the relative ease of access to sources of proof, (2) the availability of compulsory process for attendance of unwilling witnesses, (3) the cost of attaining willing witnesses, (4) the possibility of a view of the premises, if a view would be appropriate in the action, and (5) all other practical problems that make trial of a case easy, expeditious, and inexpensive. Id. The weight given to any of these factors depends on the particular facts of each case. Glidden Co. v. HM Holdings, Inc. (1996), 109 Ohio App.3d 721, 672 N.E.2d 1108. Appellant claims that the forum of Cuyahoga County, Ohio, was inconvenient for the reasons set forth below.

{¶ 18} First, we look at the public interest factors set forth by appellant. Appellant claims that Ohio should not bear the costs to manage and litigate cases with no connection to this jurisdiction because asbestos litigation has taxed the resources of this court and has the potential effect of denying Ohio citizens access to Ohio courts. Also, Ohio should have no concern about a case in which North Carolina citizens were injured by the appellant. FELA gives plaintiffs the statutory right to bring suit in any jurisdiction in which the railroad conducts business, and this court is bound to follow federal law. It is in the trial court's discretion to determine whether its docket is full or the resources of the court will be taxed in hearing the case.

{¶ 19} In the instant matter, the trial court had the ability to dismiss the action for forum non conveniens and, in its discretion, chose not to. The Common Pleas Court of Cuyahoga County has streamlined asbestos litigation and is extremely familiar with this area of law. Contrary to appellant's claim, Ohio courts and juries do have an interest in health and safety issues involving corporations that operate in our community.

{¶ 20} Next, this court examines the private interest factors set forth by appellant. Norfolk claims that it was forced to expend substantial time and money conducting discovery and trial depositions in North Carolina. The depositions of Lester Poe, Lee MeAdoo Hess, Dr. Rachel Ross, Dr. James R. Cervin, Dr. Federick Dula, Dr. Stephen Proctor, Elizabeth Miller, Allene Poe, Dr. Neil Patel, and James Bailey were conducted in North Carolina by both the appellees and the appellant. However, depositions were taken and witnesses were also called from Ohio, Texas, British Columbia, and Virginia. Asbestos litigation is inherently complex,...