In re Asbestos Litigation
| Decision Date | 08 March 2006 |
| Docket Number | C.A. No. 05C-08-285-JRS (ASB).,C.A. No. 04C-09-122-JRS (ASB).,C.A. No. 05C-08-250-JRS (ASB).,C.A. No. 05C-09-214-JRS (ASB).,C.A. No. 05C-08-176-JRS (ASB).,C.A. No. 05C-05-273-JRS (ASB).,C.A. No. 05C-08-249-JRS (ASB).,C.A. No. 05C-08-061-JRS (ASB).,C.A. No. 05C-08-260-JRS (ASB).,C.A. No. 05C-08-220-JRS (ASB).,C.A. No. 05C-06-057-JRS (ASB).,C.A. No. 05C-06-216-JRS (ASB).,C.A. No. 05C-07-223-JRS (ASB).,C.A. No. 05C-05-274-JRS (ASB).,C.A. No. 05C-07-109-JRS (ASB).,C.A. No. 05C-08-248-JRS (ASB).,C.A. No. 05C-06-067-JRS (ASB).,C.A. No. 05C-06-029-JRS (ASB).,C.A. No. 05C-08-261-JRS (ASB).,C.A. No. 05C-05-272-JRS (ASB).,C.A. No. 05C-05-247-JRS (ASB).,C.A. No. 05C-05-270-JRS (ASB).,C.A. No. 05C-07-178-JRS (ASB).,C.A. No. 05C-05-203-JRS (ASB).,C.A. No. 05C-06-083-JRS (ASB).,C.A. No. 05C-07-124-JRS (ASB).,C.A. No. 05C-08-162-JRS (ASB).,C.A. No. 05C-06-215-JRS (ASB).,C.A. No. 05C-05-341-JRS (ASB).,C.A. No. 05C-05-302-JRS (ASB).,C.A. No. 05C-08-218-JRS (ASB).,C.A. No. 05C-06-176-JRS (ASB).,C.A. No. 05C-07-206-JRS (ASB).,C.A. No. 05C-06-341-JRS (ASB).,C.A. No. 05C-05-329-JRS (ASB).,C.A. No. 05C-07-248-JRS (ASB).,C.A. No. 05C-08-262-JRS (ASB).,C.A. No. 05C-08-142-JRS (ASB).,C.A. No. 05C-05-242-JRS (ASB).,C.A. No. 05C-05-246-JRS (ASB). |
| Citation | 929 A.2d 373 |
| Parties | In re ASBESTOS LITIGATION Sami Abou-Antoun and Michelle Abou-Antoun, his wife, Robert A. Penza, Esq., Administrator of the Estate of John Babbit, deceased, Charlene Babbit, Individually and as surviving spouse of John Babbit, deceased and Tricia Burgess, Jennifer Babbit and Scott Babbit, Individually and as surviving children of John Babbit, deceased, Dana Bandin and Andrew Bandin, her husband, Robert A. Penza, Esq., Administrator of the Estate of Donald Barker, deceased, Amanda Barker, Individually and as surviving spouse of Donald Barker, deceased and April Amyx and Jacob Barker, Individually and as surviving children of Donald Barker, deceased, Nathan Bell, Eugene Bressan, Betty Cady and Kimball Cady, her husband, Vera Campbell-Emanuel and Anthony Emanuel, her husband, Robert Coveney and Florence Coveney, his wife, George Davis and Richard Davis, his wife, Wency Diaz, Isaiah Fenner, Sr. and Carolyn Fenner, his wife, Nancy Ferrero and Anthony Ferrero, her husband, Robert A. Penza, Esq., Administrator of the Estate of John Giannini, deceased, Leonette Giannini, Individually and as surviving spouse of John Giannini, deceased, Donald Haywood and Barbara Haywood, his wife, Robert A. Penza, Esq., Administrator of the Estate of Barbara Hintz, deceased, and Arlon Hintz, husband of Barbara Hintz, deceased, Louis Jauregui, James Jones and Barbara Jones, his wife, George Jurgens and Margaret Jurgens, his wife, Virginia Kandzierski, Gladys Kearney, Robert A. Penza, Esq., Administrator of the Estate of Philip Koontz, deceased, Dennis Koontz, Individually and as surviving son of Philip Koontz, deceased, Wileen Little and James Little, her husband, Manuel Lluerma and Juana Ordiales, his wife, William Losi, Sr., Sharon Marks and Martin Marks, her husband, Wilda Metzger and Carl Metzger, her husband, June Mols, Charles Ortner, Robert Overby and Ann Overby, his wife, Theodore Pate and Christine Pate, his wife, Robert Rozenboom and Mildred Rozenboom, his wife, Darrell Shanahan and Gloria Shanahan, his wife, John Shields, Jr. and Sandra Shields, his wife, Mark Smith and Autumn Smith, his wife, Dorothy Snell and Clyde Snell, her husband, Robert Stevens and Dorothy Stevens, his wife, Antoinette Vortriede and Eric Vortriede, her husband, Larry Williams and Cathy Williams, his wife, Lyle Woolston and Julie Woolston, his wife. |
| Court | Delaware Superior Court |
The recent filing of several complaints by out-of-state plaintiffs alleging exposure to asbestos outside of Delaware has prompted certain defendants in these actions to seek dismissal for forum non conveniens and in the interest of justice. This opinion will address forum non conveniens; a separate opinion will address the defendants' contention that the complaints alleging foreign exposure to asbestos implicate the "interest of justice" provision of Delaware's long arm statute.1
The defendants' motions cause the Court to consider whether the well-settled principles that have emerged from Delaware's forum non conveniens jurisprudence should be altered in the context of mass tort litigation. Specifically, the Court must determine whether the standard of review should be reconfigured or the applicable factors weighted differently to account for the number of foreign plaintiffs that recently have filed here. The Court also must determine whether to consider the so-called "public interest factors," not typically applied in Delaware, when determining whether Delaware is a proper forum for these cases.
For the reasons that follow, the Court has concluded that it must apply the same liberal forum non conveniens standard that has evolved in the context of Delaware corporate and commercial litigation to the newly-filed mass tort cases that have been brought here. The Court also has concluded that the "public interest factors" are not ipso jure inapplicable to forum non conveniens analysis in Delaware, and may be dispositive at some future point in this litigation if the number of foreign plaintiffs who file here grows substantially. These factors do not, however, warrant dismissal of these cases at this time given the manageable demands of the Court's current asbestos docket. Accordingly, the motions to dismiss for forum non conveniens must be DENIED.
The phenomenon now known as the "asbestos litigation" first arrived in Delaware in the mid-1970's. Since then, Delaware has maintained a steady asbestos docket that has ranged in size from approximately 500 to 2000 pending cases at any one time. Almost all of these cases have involved plaintiffs with at least some connection to Delaware who allege exposure to asbestos in Delaware. In May of 2005, the Court received the first of several complaints filed by out-of-state plaintiffs who allege that they were exposed to asbestos in various states around the country other than Delaware. As of the time of filing of the motions sub judice, the number of these out-of-state filings had reached 129.2
According to the defendants, none of the plaintiffs in these cases have any meaningful connection to Delaware. Indeed, most of them have never stepped foot within our borders. The defendants named by these plaintiffs are many, ranging from automobile manufacturers to automobile parts manufacturers, from boiler manufacturers to construction product manufacturers and insulation companies. Many of the defendants are incorporated in Delaware but some are not.
In each of these cases, it is clear that virtually all of the evidence — documentary, testimonial and otherwise — is located outside of Delaware. In some cases, the evidence resides primarily in one state. In others, the evidence is scattered across many states and multiple alleged exposure sites. It is also clear that Delaware substantive law likely will not apply to these disputes. Indeed, the choice of law analysis in many of the cases will point in several directions depending upon a multitude of factors including, inter alia, the place(s) of exposure and the domicile(s) of the parties.3 Finally, there is little doubt that litigating this number of cases involving foreign plaintiffs, foreign exposures and foreign substantive law will pose practical and logistical challenges to the parties that may not exist if the cases were litigated in the home states of the plaintiffs or the state(s) where the exposure occurred. These concerns, and others, have prompted several defendants to move to dismiss the foreign plaintiffs' complaints for forum non conveniens.
The defendants contend, as an initial matter, that the number of cases that have been filed here in a relatively short time span involving out-of-state plaintiffs alleging foreign exposure to asbestos should lead the Court to the inescapable conclusion that these plaintiffs are engaging in blatant forum shopping. Under these circumstances, defendants contend that the liberal deference traditionally given by Delaware courts to a plaintiff's choice...
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