Blogging has improved our vocabulary. For one thing, we learned what “transubstantivism” was. No, it doesn’t have anything to do with grape juice and wafers. It means that the same rules of civil procedure apply to all civil cases being litigated, regardless of their subject matter.
Thus we complained mightily back in February of 2009 when a court in New York refused to apply the normal rules of forum non conveniens to Oxycontin litigation because, the judge concluded, “mass torts are different.” In re OxyContin II, 881 N.Y.S.2d 812 (N.Y. Sup. 2009). As explained in more detail in that post, the court allowed a Georgia plaintiff, prescribed a drug in Georgia by a Georgia physician to maintain a lawsuit in New York, which had no contact at all with the claim. The upshot, we pointed out, would be an instant mass tort (there were almost 300 similarly situated cases), as anybody anywhere in the country could decide “I Love New York” and bring their suit there.
We found that ruling so egregious that, even though it was a state trial court procedural ruling, it made our list of the “bottom ten” worst drug/device decisions of 2009.
Well, no longer. We’re pleased to report that OxyContin II had been reversed on appeal – making it the second on that list to bite the dust in a higher court (for the other, see here). Yesterday, in In the Matter of OxyContin II, 2010 WL 3701311, slip op. (N.Y.A.D. Sept.23, 2010) (“Oxycontin II II“), the second New York Appellate Division unanimously reversed.
The court held no way in heck are we going to subsidize the flotsam and jetsam of other states:
[O]ur courts are not required to add to their financial and administrative burdens by entertaining litigation which does not have any connection with this State. The common-law doctrine of forum non conveniens, . . . permits a court to dismiss such actions where it is determined that the action . . . would be better adjudicated elsewhere.
OxyContin II II, slip op. at 2 (we think – the pagination is weird) (citations and quotation marks omitted).
Mass torts are not different. The same forum non rules apply:
There is no significant dispute that the Oxycontin involved was not manufactured in New York, and the defendant’s corporate offices are not located in this State. None of the nonresident plaintiffs purchased Oxycontin in New York, none ingested the drug here and, importantly, none received treatment for alleged resulting injuries in this State. Consequently, witnesses with critical information on both proximate cause and damages do not reside in New York. . . . [U]nder the circumstances presented here [that is – a mass tort], we can find no strong counterbalancing consideration for retaining the cases of the out-of-state plaintiffs in our courts. Consequently, we find that the Supreme Court [in New York, a trial court] improvidently exercised its discretion in denying the defendant’s motion to dismiss.
Id. at 3. Thus, it doesn’t look like New York trial courts will be able to, through disregard of established forum non procedures, create ersatz mass torts whenever they want.
Tip of the hat to Russ Jackson’s Consumer Class Action/Mass Tort Blog for finding this first.