Last weekend, we saw the surprisingly effective “Danny Collins,” a new movie starring Al Pacino as an aging rock star wondering how the focus of his life would have changed if he’d known contemporaneously about an admiring letter from John Lennon that was not given to him until decades later.
The focus of today’s post might have changed if, instead of celebrating a correct appellate decision, we were blogging about the underlying order. Those of us who practice in the mass tort arena are all too familiar with the forum-shopping propensities of plaintiffs’ lawyers and the inevitably-resulting dockets filled with plaintiffs who bear no relation to the states in which their cases are pending. In State of West Virginia ex rel. J.C. v. Mazzone, 2015 W.Va. LEXIS 259 (W. Va. Apr. 10, 2015), the West Virginia Supreme Court entertained a Motion for Writ of Prohibition seeking to prevent West Virginia’s Mass Litigation Panel from enforcing its October 2014 order dismissing petitioners – 20 Zoloft plaintiffs from numerous other states – on forum non conveniens grounds. (The named plaintiffs were infants who had allegedly sustained birth defects; hence, the Court referred to them by their initials). Had we blogged about the Panel’s order, we would have pointed out that the Panel did not need to consider the convenience of the forum. Under SCOTUS’s April 2014 decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), which we discussed here, the fact that Pfizer was registered to do business in West Virginia did not confer general jurisdiction over it on West Virginia’s courts. But forum non was the route the Panel chose and was the subject of the Court’s consideration.
The Court explained that “disputes over venue, such as a dismissal for forum non conveniens,” are exceptions to the “general proposition that prohibition does not lie to review discretionary rulings. . . .” J.C., 2015 W.Va. LEXIS 259 at *14. In considering a Motion for Writ of Prohibition, a court is to consider five factors, but “the third, the existence of clear error as a matter of law, should be given substantial weight. Id. at *13.
Under West Virginia law, a court may “decline to exercise jurisdiction under the doctrine of forum non conveniens, and shall say or dismiss the claim or action,” when it finds that, “in the interest of justice and for the convenience of the parties, a claim or action would be more properly heard in a forum outside [the] State. . . .” Id. at *27 (citation to West Virginia code omitted). Though “the plaintiff’s choice of forum is entitled to great deference,” “this preference may be diminished when the plaintiff is a nonresident and the cause of action did not arise in [the] State.” Id. It was undisputed that all of the petitioners resided, and their causes of actions arose, in states other than West Virginia. Id.
The Court enumerated eight factors relevant to consideration of forum non conveniens, and noted that petitioners focused on the second – “whether the maintenance of their claims in West Virginia would work a substantial injustice on the respondents,” — the sixth – “balancing the public interest of the state and the private interests of the parties,” – and the seventh – “unreasonable duplication and proliferation of litigation.” Id. at *29-30.
In front of the Panel, petitioners argued that their dismissal, two years into the litigation, would “result in extreme prejudice to them,” and they disputed the Panel’s conclusion that the interstate discovery that would be necessary if the claims were allowed to remain pending in West Virginia would be “complicated and expensive.” Id., at *31-32. Respondents countered that, “because the subject plaintiff families are from sixteen states, their respective treating physicians, prescribing physicians, dispensing pharmacists, and other third-party witnesses are located in those, and potentially other, states, “ outside of West Virginia’s subpoena power. Id. at *33-34. This would require each party to “bear the burden and expense of filing separate individual lawsuits” in their home states of non-party witnesses, to secure subpoena power in those states. Id. at *34. Such factors, “coupled with West Virginia’s lack of connection to the non-resident plaintiffs’ claims,” were found by the Panel “to work a substantial injustice to both Plaintiffs and Defendants.” Id. at *35.
With respect to the sixth factor – balancing the State’s public interests with the private interests of the parties – the Panel “acknowledged the conspicuous advantages to conducting trials in the petitioners’ home states where the courts are familiar with their respective states’ laws,” and “concluded that the public interest of the state predominate in favor of the petitioners bringing their claims in their home states.” Id. at *37.
Finally, with regard to “duplication or proliferation of litigation – the seventh statutory factor” the Panel disagreed with petitioners’ contention that they would be forced to start at “ground zero” if required to re-file in their home states, pointing out that “any plaintiff family who re-files in their home state will have access to the significant discovery that Pfizer has already produced,” as well as to discovery already completed in the federal Zoloft MDL pending in Pennsylvania. Moreover, discovery directed to the plaintiff families was only in its initial stages. The Panel concluded that “dismissal of the petitioners will not significantly expand the scope or geographical breadth of the Zoloft litigation.” Id. at *40.
After considering the Panel’s findings, the Court concluded,
[W]e find no error in the Panel’s decision to dismiss the twenty non-resident plaintiff families on the basis of forum non conveniens . . . West Virginia has no real interests in trying non-resident plaintiffs’ claims again non-resident defendants involving causes of action that accrued in states other than West Virginia. [Those claims] can be tried substantially more inexpensively and expeditiously in those other states where the sources of proof will be more easily accessible . . . . . Moreover, the applicable and governing law in those other states is more readily applied by the courts of those states.
Id. at *41-42 (internal punctuation and citations omitted). Thus, the Court found “no ground to warrant the issuance of a writ of prohibition.” Id. at *42.
Bauman was a huge leap forward in the quest to restore logic to the question of where a case may be litigated. We applaud the West Virginia Supreme Court (we have recently found ourselves admiring this state with some frequency) for this similarly-sensible decision, although, with Bauman on the books, we suspect that most future venue battles involving non-resident plaintiffs will be over personal jurisdiction rather than forum non conveniens.