Ison v. EI DuPont de Nemours and Co.

• Decision Date: 25 May 1999
• Docket Number: No. 416, 1998.,416, 1998.
• Citation: 729 A.2d 832
• Court: United States State Supreme Court of Delaware
• Parties: Mark ISON and Karen Ison, as parents and natural guardians of Blake Ison; and Mark Ison and Karen Ison Individually; Andrea Reilly, as parent and natural guardian of Jesse Hanham, and Andrea Reilly, Individually, Plaintiffs Below, Appellants, v. E.I. DUPONT DE NEMOURS AND COMPANY, INC., Defendant Below, Appellee. Matthew Bowen and Melissa Ellis, as parents and natural guardians of Emily Bowen and Matthew Bowen and Melissa Ellis, Individually; Martin Griffin and Trudi Griffin, as parents and natural guardians of Darren Griffin; and Martin Griffin and Trudi Griffin, Individually, Plaintiffs Below, Appellants, v. E.I. DuPont de Nemours and Company, Inc., Defendant Below, Appellee. Michael Brown and Lindsay Brown, as parents and natural guardians of Philip Brown and Michael Brown; and Lindsay Brown, Individually; Graham Copland and Susan Copland, as parents and guardians of Gary Copland; and Graham Copland and Susan Copland Individually; Jonathan Johnstone and Jacqueline Johnstone, as parents and guardians of Jared, Jonathan and Jacqueline Johnstone, Individually; Juveria Memom as parent and guardian of Khalid and Juveria Memon, Individually; Plaintiffs Below, Appellants, v. E.I. DuPont de Nemours and Company, Inc., Defendant Below, Appellee.

729 A.2d 832

Mark ISON and Karen Ison, as parents and natural guardians of Blake Ison; and Mark Ison and Karen Ison Individually; Andrea Reilly, as parent and natural guardian of Jesse Hanham, and Andrea Reilly, Individually, Plaintiffs Below, Appellants, v. E.I. DUPONT DE NEMOURS AND COMPANY, INC., Defendant Below, Appellee.

Matthew Bowen and Melissa Ellis, as parents and natural guardians of Emily Bowen and Matthew Bowen and Melissa Ellis, Individually; Martin Griffin and Trudi Griffin, as parents and natural guardians of Darren Griffin; and Martin Griffin and Trudi Griffin, Individually, Plaintiffs Below, Appellants, v. E.I. DuPont de Nemours and Company, Inc., Defendant Below, Appellee.

Michael Brown and Lindsay Brown, as parents and natural guardians of Philip Brown and Michael Brown; and Lindsay Brown, Individually; Graham Copland and Susan Copland, as parents and guardians of Gary Copland; and Graham Copland and Susan Copland Individually; Jonathan Johnstone and Jacqueline Johnstone, as parents and guardians of Jared, Jonathan and Jacqueline Johnstone, Individually; Juveria Memom as parent and guardian of Khalid and Juveria Memon, Individually; Plaintiffs Below, Appellants, v. E.I. DuPont de Nemours and Company, Inc., Defendant Below, Appellee.

No. 416, 1998.

Supreme Court of Delaware.

Submitted: March 2, 1999.

Decided: May 25, 1999.

Robert Jacobs, Thomas C. Crumplar (argued), and Vincent J.X. Hedrick, II, of Jacobs & Crumplar, P.A., Wilmington, Delaware; James M. Hughes, of Ness, Motley, Loadholt, Richardson & Poole, P.A., Charleston, South Carolina; and James L. Ferraro and Ana M. Rivero, of Ferraro & Associates, P.A., Miami, Florida, for Appellants.

James M. Semple, of Morris, James, Hitchens & Williams, Wilmington, Delaware; David Boies (argued), of Boise & Schiller, L.L.C., Armonk, New York; and Patrick W. Lee, Kathryn D. Kirmayer, and William L. Anderson, of Crowell & Moring, Washington, D.C., for Appellee.

Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices. VEASEY, Chief Justice:

In this forum non conveniens case, we reverse the trial court's dismissal of a tort action against the defendant. The plaintiffs are foreign families whose claims arise out of alleged birth defects, including blindness, caused by a chemical manufactured by defendant. The injuries allegedly occurred in England, Wales, Scotland and New Zealand by reason of the mothers' exposure to the chemical when used agriculturally.

In dismissing this action, the trial court listed the convenience factors traditionally used by Delaware courts in analyzing whether to dismiss an action on grounds of forum non conveniens, and concluded that, on balance, they favored the defendant. But the trial court did not mention, analyze or apply the central criterion of Delaware Supreme Court jurisprudence: that the defendant must show "overwhelming hardship" if the case is to be dismissed. Rather, the trial court concluded in a brief letter opinion merely that "there is a better forum to prosecute these matters," meaning the various foreign fora.

We hold that a trial court, in applying the doctrine of forum non conveniens, may not rest its analysis on the conclusion that "there is a better forum." The court must require the defendant to show that this is one of those rare cases where the drastic relief of dismissal is warranted based on a strong showing that the burden of litigating in this forum is so severe as to result in manifest hardship to the defendant.

The fact that the plaintiffs are foreign nationals does not deprive them of the presumption that their choice of forum should be respected. Although that presumption is not as strong in the case of a foreign national plaintiff as in the case of a plaintiff who resides in the forum, we need not rest our decision on that issue because of the defendant's weak showing of hardship. Here the defendant had its principal place of business in Delaware. There were significant contacts between the defendant's activities in Delaware and the product alleged to have caused the harm. These facts, in the context of the analysis of the traditional convenience factors, effectively negate any claim of hardship presented by the defendant sufficient to deprive these plaintiffs of their choice of forum.

Facts

This is a consolidated case, combining product liability claims filed against E.I. duPont de Nemours and Company, Inc. ("DuPont") in the Superior Court. Prior to consolidation, the plaintiffs sued DuPont in three separate groups, each alleging that the mothers' exposure to Benlate, a DuPont product, caused specific birth defects in their children.¹ DuPont is a Delaware corporation and has its principal place of business in Delaware.

All of the alleged exposures to Benlate occurred outside of the United States, specifically in New Zealand, England, Wales and Scotland. The Ison plaintiffs are from New Zealand and claim that the mothers' exposure to Benlate while employed by the Christchurch City Council in city nurseries and botanic gardens caused specific birth defects in their children.² They filed a complaint in the Superior Court, New Castle County, alleging that job-related exposure to Benlate caused the birth defects.³ They allege that exposure occurred over several years through ingestion, absorption, dust inhalation, resulting from planting Benlate-soaked seedlings, and planting flower bulbs dusted with Benlate. The evidence related to the Ison plaintiffs' exposure to Benlate and their subsequent medical care is located in New Zealand.

The Bowen plaintiffs are two families, one from England and one from Wales, that allege the mothers' use of a retail version of Benlate caused their children's birth defects.⁴ The Brown plaintiffs, four families from Scotland, also claim that the mothers' exposure to the home version of Benlate caused their children's birth defects.⁵ The Bowen and Brown plaintiffs also filed suit in Superior Court, New Castle County. All of the Bowen and Brown plaintiffs allege specific exposures to the home-use version of Benlate that occurred in residential (as distinct from job-related) settings during the mothers' pregnancies. The evidence related to the Bowen and Brown plaintiffs' exposures to Benlate, and subsequent medical treatment, is located in Great Britain.

Benlate is a DuPont trademark for a fungicide developed by DuPont primarily for commercial agricultural use. The only active ingredient in Benlate is benomyl, a fungicide used primarily on field crops, fruits, nuts, ornamentals, mushrooms and turfgrass. DuPont first developed benomyl in the late 1960s and registered it in 1972. All of the initial research, development and testing of benomyl was conducted by DuPont in its facilities in and around Wilmington, Delaware. DuPont admits that most of the persons familiar with this development process are either current or former DuPont employees in the United States.

Although Benlate is a DuPont product, DuPont permits other companies to sell it pursuant to contractual arrangements. During the period of exposure alleged by the Bowen and Brown plaintiffs, DuPont's United Kingdom subsidiary ("DuPont (U.K.)") had entered into such a contractual arrangement with Imperial Chemical Industries plc ("I.C.I."), an English agrochemical company, that allowed I.C.I. to market and sell Benlate for home use in the United Kingdom. This arrangement began in 1983 and involved Benlate formulated in France using benomyl manufactured at the DuPont facility in Belle, West Virginia.⁶ According to the terms of its contract with DuPont (U.K.), I.C.I. was responsible for, and obtained, the necessary regulatory approval for its sale of Benlate for home use. All of the Bowen and Brown plaintiffs allege that the birth defects at issue resulted from Benlate sold by I.C.I.

During the period of exposure alleged by the Ison plaintiffs, DuPont sold Benlate for commercial agricultural use in New Zealand through its New Zealand subsidiary ("DuPont (N.Z.)"). DuPont (N.Z.) sold the Benlate at issue to the Ison plaintiff's employer, the Christchurch City Council. DuPont (N.Z.) was responsible for, and obtained, the necessary regulatory approval for the sale of Benlate in New Zealand.

Decision of the Superior Court

DuPont contends that the trial court's dismissal of this action is warranted. The holding set forth in the trial court's letter opinion of four pages is as follows:

In deciding a motion for Forum Non Conveniens the Court is bound by General Foods Corp. v. Cryo-Maid, Inc., Del.Supr., 198 A.2d 681 (1964). The Court must look at the six factors listed in that case when deciding such a motion.

The first factor is what law applies. Delaware does not. All of the alleged activities took place in the home land of the plaintiffs.

The second factor is relative ease of access to proof. Most of the witnesses are in the homeland of the plaintiffs. There is, perhaps, some discovery that must take place in the United States concerning the components of the alleged substance used in England.

The third factor is the availability of compulsory process for witnesses. Again, most of the witnesses are in England. The manufacturer of the chemical allegedly used is in West Virginia.

The fourth factor is the possibility of reviewing the premises. Again, the activity occurred in the homeland of the plaintiffs. However, that would be easily satisfied with a video, if it was necessary, to view the premises. This is not an important issue in this case.

The fifth factor is the pendency or non-pendency of a similar action or actions in another jurisdiction. To this Court's knowledge the only pending matter is in the Federal District Court of West Virginia.

The sixth factor is other practical considerations which would make trial easy, expeditious, and inexpensive. According to the defendant, it is necessary to join third-party defendants in this case who formulated and distributed the alleged substance

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