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A Good Week For Forum Non in New York

By James M. Beck and Mark Herrmann

Defendants went two for two sending forum-shopping non-resident plaintiffs back where they came from in New York this week.  First, the Second Circuit, in a summary order, told bunch of Austrian plaintiffs from a ski train fire to take their lawsuits back across the Atlantic.  Ferk v. Omniglow Corp., slip op. (2d Cir. Dec. 21, 2009).  Austrians injured in an Austrian accident suing in the United States were not entitled to "very little deference" (we'd say none at all) in their choice of forums.  Id. at 3.  Allegations of corruption weren't any of a US court's business ("I] is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another sovereign nation?).  Id.  And these plaintiffs blew their statute of limitations argument (just like they blew the statute itself) with poor lawyering - they failed to raise the argument in the lower court.  Id. at 4.

We're particularly gratified to say auf wiedersehen to the Kaprun litigation because it was the the only legal basis for a rather questionable section of the ALI's Principles of the Law of Aggregate Litigation Project (§2.10) that would allow for opt-in class actions brought by foreign plaintiffs in US courts over things that happened overseas.  Now, not only was the attempt at an opt-in class class reversed (Kern v. Siemens Corp., 393 F.3d 120 (2d Cir. 2004), but the whole kit and caboodle's been shipped back to Austria where it belonged in the first place.  Thus, we'd have to say that this section is pretty much dead on arrival.

That's one.

In some ways, we like the other one even better - even though it's even shorter.  In Avery v. Pfizer, Inc., slip op. (N.Y.A.D. Dec. 22, 2009), the First Department (don't ask, this gets confusing even to us), put a dozen or so squatter Lipitor plaintiffs back on a midnight train to Georgia - also on forum non conveniens grounds.  In the words of the court, the test plaintiff "lives in Georgia," ingested the drug in Georgia," suffered his injuries in Georgia," "all [plaintiff's] treating physicians are in Georgia," and "all of {plaintiff's] witnesses are in Georgia.  Id. at 88-89 (the page numbering confuses us, too - here in Pa, we start our opinions with page 1).

But plaintiffs filed suit in New York state court.  Bet it wasn't just so plaintiffs' counsel could see the Mets play the Braves at Shea (or wherever's the scene of the Mets' annual collapses these days).

We're particularly gratified for the result in Avery because, on appeal, the plaintiffs argued for the same benighted "mass torts exception" that another New York judge had seen fit to create out of whole cloth.  We criticized that prior decision here when it first came down, and more recently bestowed upon it the distinction of being one of the ten worst drug/device decisions of 2009.  The Appellate Division in Avery said "thanks, but no thanks" to that bit of judicial tort activism:

We decline to disregard the traditional forum non conveniens factors in favor of a "mass torts litigation" approach.

Slip op. at 89 (citing and refusing to follow Matter of Oxycontin II, 23 Misc.3d 974 (N.Y. Sup. 2009)).

Unfortunately, the Appellate Division's disapproval in Avery doesn't kill the Oxycontin II decision outright.  The folks from Skadden Arps who were nice enough to send this baby along were also good enough to explain to us not only that New York organizes its intermediate appellate courts by geographic region, but that New York City is such a busy place, legally (and every other way), that a trial court in Staten Island (Oxycontin) isn't even in the same appellate department as a trial court in Manhattan (Avery).  But since the Oxycontin II decision is also on appeal (you can appeal just about anything in New York state court), here's hoping that the appellate court there will find persuasive the Avery rejection of some sort of "mass tort exception" from the normal rules of civil procedure .

Full post as published by Drug and Device Law on December 23, 2009 (boomark / email).