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United States District Court, S.D. New York

January 9, 2004.

DAVID VAN DER VELDE, deceased, by and through his Executrix, GABRIELLA VAN DER VELDE, Plaintiff

The opinion of the court was delivered by: BARBARA JONES, District Judge


Plaintiff brings this action to recover compensation for the injury and death of her husband, David Van Der Velde ("Decedent"), whose injury and death were allegedly caused by smoking cigarettes manufactured and sold by Philip Morris Incorporated ("PMI"). Plaintiff's complaint includes several causes of action, including claims for negligence, strict: liability, fraud and concealment, breach of express warranty, conspiracy, and a claim under New York General Business Law § 350. Decedent was a life-long citizen and resident of England, whose smoking was largely confined to England,*fn1 who received medical care and eventually died in England, and whose estate was Page 2 administered in England. Defendant PMI moves to dismiss this case on the grounds of forum non conveniens. In bringing this motion, Defendant agrees (a) to submit to the jurisdiction of the English courts to adjudicate this action, (b) to provide relevant documents and make its employees available to testify in England at its own expense, and (c) to waive any statue of limitations defense in an English action by Plaintiff on the basis of any limitation period expiring between the date of filing this action and 60 days following its dismissal. For the reasons detailed below, Defendant's motion is GRANTED.


  The decision to dismiss a case on forum non conveniens grounds "lies wholly within the broad discretion of the district: court. "Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1232 (2d Cir. 1996). Whether dismissal on the grounds of forum non conveniens is appropriate is a three-step process: First, the court must determine what deference is owed plaintiff's choice of forum. Second, the court must determine whether an adequate alternative forum exists. Third, in the event that an adequate alternative forum does exist, the court must balance the public and private interest factors articulated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947, A. Deference to the Plaintiff's Forum

  The first level of inquiry in a forum non conveniens Page 3 analysis is to determine what deference is owed Plaintiff's choice of forum. This Court begins with the assumption that the Plaintiff's choice of forum will stand unless the defendant can demonstrate that reasons exist to afford it less deference. The "degree of deference to be given to a plaintiff's choice of forum moves on a sliding scale depending on several relevant considerations." Iragorri v. United Techs. Corp., 274 F.3d 65, 71 (2001). This "sliding scale" approach can be described as follows:

[T] he greater the plaintiff's or the lawsuit's bona fide connections to the United States and to the forum of choice and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States, the more difficult it will be for the defendant to gain dismissal for forum non convenien. . . . On the other hand, the more it appears that the plaintiff's choice of a U.S. forum was motivated by forum-shopping reasons — such as attempts to win a tactical advantage resulting from local laws that favor the plaintiff's case, the habitual generosity of juries in the United States or in the forum district, the plaintiff's popularity or the defendant's unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum — the less deference the plaintiff's choice commands and, consequently, the easier it becomes for the defendant to succeed on a forum non conveniens motion by showing that convenience would be better served by litigating in another country's courts.
Id. at 71-72.

  Here, there are two reasons to accord Plaintiff's choice a Page 4 forum little deference. First, Plaintiff is a life-long citizen and resident of England. It is well established that a foreign plaintiff's choice of forum receives less deference than the choice of a domestic plaintiff. E.g., Piper Aircraft Co. v. Reno, 454 U.S. 235, 256 (1981); Murray v. BBC, 81 F.3d 287, 290 (2d Cir. 1996). Second, and more importantly, Plaintiff and her attorneys have made public statements that they have brought this action as a "test case" for English smokers to recover from tobacco companies and to reap the large awards of money damages that American plaintiffs have secured. (Care Decl. at ¶ 6). Indeed, the newspaper articles appended to the Declaration of Alan Care, Plaintiff's English counsel, indicate that Mr. Care advertised for an "ideal plaintiff" to bring his test case and was then contacted by Plaintiff and Decedent. The public-statements by Plaintiff and her counsel leave little doubt: but that this case was brought in this forum in order to gain a tactical advantage. Thus, in the face of Plaintiff's forum shopping, the Court affords Plaintiff's forum choice very little deference.

 B. England as an Adequate Alternative Forum

  An alternative forum generally is adequate if "(1) the defendants are subject: to service of process there; and (2) the forum permits litigation of the subject matter of the dispute." Bank of Credit and Commerce Int'l Overseas Ltd. v. state Bank Page 5 of Pakistan, 273 F.3d 241, 246 (2d Cir. 2001) (internal quotation marks and citation omitted). Here, Defendants have agreed to accept service in England for this action, (Def. Mem. at 1), and there is no dispute that England permits the litigation of the instant claims. Therefore, England is an adequate alternative forum.

  Plaintiff, however, maintains that England is not an adequate alternative forum because (1) the English legal system requires an unsuccessful litigant to pay for her opponent's attorney's fees and costs; (2) the English legal system does not allow for the same contingency fee arrangement allowed in the American system; and (3) she has been unable to find an attorney to bring her claim in an English Court.*fn2 Plaintiff maintains that the inadequacies of the English legal system, as well as the fact that she was unable to find a personal injury attorney, should lead this Court to conclude that England is not an adequate alternative forum. In support of this argument, Page 6 Plaintiff relies on a footnote in Piper Aircraft, which states that:

Ordinarily, [the alternative forum] requirement will be satisfied when the defendant" is amenable to process' in the other jurisdiction. In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute.
Piper, 454 U.S. at 255.

  The "rare circumstances" exception to the alternative forum rule appears, by its terms, to be confined to an inquiry into whether the remedy available in the alternative jurisdiction is satisfactory. Plaintiff's complaints regarding contingency fees and the requirement that a losing party pay her opponent's fees do not concern the adequacy of available remedies. Moreover, the Piper Court specifically noted that "unlike most foreign jurisdictions, American courts allow contingent attorney's fees, and do not tax losing parties with their opponents' attorney's fees" as reasons why American courts are "already extremely attractive to foreign plaintiffs." Piper, 454 U.S. at 252 n.18. It is illogical to conclude that the Piper Court meant to exclude as alternative forums all jurisdictions that do not include those features which make American courts attractive to foreign Page 7 plaintiffs.

  In addition, the Second Circuit has already rejected one of Plaintiff's arguments — that financial hardships facing a plaintiff in an alternative forum as a result of the absence of contingent fee arrangements are sufficient to deem a forum unavailable. The Second Circuit explained that "to do otherwise would render the financial burden on a plaintiff the determinative factor, [and] [s]uch a result would ignore the Supreme Court's admonition that if central emphasis [is] placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable." Murray v. BBC, 81 F.3d 287, 292 (2d Cir. 1996) (internal quotation marks and citations omitted). This analysis is equally applicable to Plaintiff's complaint that she will have to pay the Defendant's attorney's fees and costs if she sues in England and is unsuccessful. Cf. Kilvert v. Tambrands Inc., 906 F. Supp. 790, 797 (S.D.N.Y. 1995).

  Plaintiff argues that her case is distinguishable from Murray "because her financial hardship or inability to afford a retainer fee is not the main reason she is unable to pursue her claim in England. Rather, the true barrier is that no personal injury practitioner is willing to file this case." (Pl. Mem. at 10). This Court need not reach the issue of whether the inability to find counsel willing to bring a specific lawsuit is Page 8 relevant in determining whether an alternative forum is adequate because, as discussed below, the Court does not find that Plaintiff has made a sufficient showing that she is unable to find counsel to bring this suit in England. However, the Court is doubtful that such an argument would prevail. Plaintiff's argument that she has been unable to find a lawyer to bring her case is essentially derivative of her contingency fee argument.*fn3 See Murray v. BBC, 81 F.3d at 292.

 C. Private Interest Factors

  The relevant private interest factors include: (a) ease of access to evidence; (b) the availability of compulsory process for the attendance of unwilling witnesses; (c) the cost of willing witnesses' attendance; (d) if relevant, the possibility of a view of premises; and (e) all other factors that might make the trial quicker or less expensive. Gulf Oil, 330 U.S. at 508. Here, the private interests tip in favor of litigating this action in England.

  The parties, unsurprisingly, each contend that the bulk of relevant evidence is located in the jurisdiction in which they wish to try this case. Plaintiff contends that "documents Page 9 relating to the Defendant's manufacture, marketing, sale or licensing of Marlboro cigarettes in England" would likely be found in PMI's corporate headquarters in New York. Plaintiff also notes that relevant witnesses on Defendant's liability are located in New York or elsewhere in the United States. Defendant claims that evidence of Decedent's smoking, knowledge about the health risks of smoking, and damages are to be found in England.*fn4 Moreover, proof bearing on whether PMI fraudulently deceived the British government and, by extension, English smokers — which Plaintiff appears to allege — is also located in England.

  Both parties have pledged to make the documents and witnesses under their control available for trial in their favored jurisdiction. But while the evidence of Defendant's alleged liability is within the control of Defendant, Plaintiff does not have control over much of the relevant evidence and witnesses that are available only in England.*fn5 For example, Page 10 although the Decedent's relatives are willing to travel to the United States to testify at trial, Plaintiff exercises no control over Decedent's health providers or non-family members who may have knowledge of Decedent's smoking history. Compare Def. Mem. at 12 ("PM Inc. will . . . make its employees available to give testimony, in England at its expense"), with Pl. Mem. at 16 ("Plaintiff will agree to assist in obtaining the appearance of Plaintiff's medical care providers") (emphasis added). Therefore, the ease of access to evidence weighs in favor of conducting this litigation in England.

  Plaintiff also argues that the grounds she offered as to why England was not an adequate alternative forum — (1) that the English legal system requires an unsuccessful litigant to pay for her opponent's attorney's fees and costs, (2) that the English legal system does not allow for the same contingency fee arrangement allowed in the American system, and (3) that she is unable to find a lawyer to bring her case in England — should be considered as private factors in favor of conducting this litigation in the United States. The Court is not persuaded chat the difficulties Plaintiff may encounter in litigating in England are sufficiently severe to tip the private interest inquiry in. her favor. See Murray v. BBC, 906 F. Supp. 858, 865 (S.D.N.Y. 1995).

  In finding that the unavailability of contingent fee Page 11 arrangements in England is of little weight in the present matter, the Court relies on the Second Circuit's reasoning in Murray v. BBC:

The availability of [contingency fee] arrangements in the United States is based on a policy decision regarding the assertion of rights in American courts where the parties or the claims have some tangible connection with this country. The decision to permit contingent fee arrangements was not designed to suck foreign parties disputing foreign claims over foreign events into American courts. There is, therefore, no American policy regarding contingent fees that weighs in favor of resolving the underlying dispute . . . in an American court.
81 F.3d at 294. This argument applies with equal force to Plaintiff's argument about paying an opponent's costs. Cf. Piper, 454 U.S. at 252 n.18.

  To the extent the availability of contingency fee arrangements continues to be a relevant private interest factor in the wake of Murray, this Court notes that Ms. Van Der Velde — who styles herself as an individual "of modest means," (Pl. Mem. at 6) — possesses significant assets. She owns real estate valued at more that $600,000 arid has other assets worth more than $125,000.*fn6 (Van Der Velde Decl. ¶ 10). These assets appreciably Page 12 exceed the assets of the plaintiff in Murray. Murray, 81 F.3d at 294. Indeed, Plaintiff can cite to no case holding that a plaintiff in a similar position was financially unable to litigate. Id. In Addition, the Plaintiff's assets demonstrate that she is clearly creditworthy, yet Plaintiff does not claim that she is unable to secure a loan to cover her legal fees. See Murray, 906 F. Supp. at 864.

  Plaintiff argues that her case is distinguishable from Murray because "no personal injury practitioner is willing to file this case." (Pl. Mem. at 10). In support of this allegation, Plaintiff notes that "there are no personal injury tobacco cases currently being litigated in England against: any tobacco company." (Pl. Mem. at 9). Even if the practical inability to find an attorney in the alternative jurisdiction were a relevant private factor to consider, Plaintiff has not established that no attorney is willing to represent her in bringing this action in England. Indeed, Plaintiff appears to have contacted only four law firms regarding the possibility of bringing this claim in England — one of those law firms appears to be serving as her English counsel on this matter and two others agreed in connection with a settlement reached in 1998 not to take part in any tobacco litigation for ten years. (Watson) Decl. at ¶ 12). Furthermore, although there may be no tobacco litigation currently pending in England, there are more than is Page 13 personal injury cases pending against tobacco companies in Ireland, which are being conducted under the same conditions about which Plaintiff complains in England. (Marks Decl. ¶ 10). Thus, the Court doe's not credit Plaintiff's conclusion that "no personal injury practitioner is willing to file this case" in England.

 D. Public Interest Factors

  The relevant public interest factors to be weighed in a forum non conveniens inquiry are (a) administrative difficulties associated with court congestion; (b) the unfairness of imposing jury duty on a community with no relation to the litigation; (c) the local interest in having localized controversies decided at home; and (d) avoiding difficult problems in conflict of laws and the application of foreign law. Gulf Oil, 330 U.S. at 508-09. Here, the public interest factors overwhelmingly favor England as the more appropriate forum.

  1. Court Congestion

  Trying this case would require the diversion of resources from other cases having more connection to this district. This case also poses an additional danger of congestion, in that it creates precedent for other foreign plaintiffs to bring tobacco suits in United States courts.*fn7 To allow foreign nationals to Page 14 bring tobacco personal injury suits in this District (or elsewhere in the federal courts) would undoubtedly place a heavy burden on the courts — a burden that would not be justified in light of the de minimis connection between smoking injuries occurring outside of the United States and this district. As explained in Doe v. Hyland Therapeutics Div., 807 F. Supp. 1117 (S.D.N. Y. 1992):

Such tenuous contacts do not justify the significant administrative costs that stand to be levied upon this Court, or the burden of jury duty expected to be thrust upon a community substantially distanced from the controversy. . . . That this Court sits in one of the busiest districts> in the country is undeniable, making this one of the congested centers of litigation referred to in [Gulf Oil]. The need to guard our docket from disputes with little connection to this forum is clear, and perhaps more accented in this instance where plaintiffs' counsel make it transparent that retaining these actions may induce the initiation of additional suits with an equally fragile nexus to this forum.
Id. at 1128. Thus the court congestion factor tips in favor of litigating this action in England. Page 15

  2. Unfairness of Imposing Jury Duty

  "[J]ury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation." Gulf Oil, 330 U.S. at 501-02. This litigation has little, if any, connection to New York or the United States. Plaintiff's claims are predicated on the smoking of an individual who lived in England his entire life, the cigarettes Decedent purchased in England, cigarette advertisements in England, and the Decedent's illness and death in England. Although the Defendant manufacturer is headquartered in New York, any interest of New York or the United States in "ensuring that American manufacturers are deterred from producing defective products" is "likely to be insignificant." Piper, 454 U.S. at 260. PMI has already litigated and continues to litigate a large number of tobacco lawsuits in the United States. (Def. Mem. at; 22-23). Any additional deterrence that would arise from allowing foreign plaintiffs to bring their claims in this jurisdiction would be minimal. Thus, this factor weighs in favor of dismissing Plaintiff's action.

  3. England's Interest in Deciding this Controversy

  Not only is England the country with the most significant. factual relationship to this litigation, but its strong interest in deciding the subject matter of this controversy is undeniable. Thus, this factor tips decisively in favor of litigating this Page 16 action in England. England has regulated the advertising and sale of tobacco since 1971. See generally Crystal H. Williamson, Clearing the Smoke: Addressing the Tobacco Issue as an International Body, 20 Penn St. Int'l L. Rev. 587, 598-600 (2002) (describing the regulations of tobacco in the United Kingdom). In making regulatory decisions, the English government has considered both the public health and the revenue implications of cigarette regulation. (Def. Mem. at 16; Hodges Decl. ¶ 6).

  Plaintiff's negligence claim is, in large part, a failure to warn claim, (Compl. ¶ 41), and Plaintiff's strict liability claim is for defective design or failure to warn. (Compl. ¶ 46). If this Court were to hear Plaintiff's negligence and strict liability claims, it would be forced to decide whether PMI violated English regulations. Although Defendant did not assert England's regulatory scheme as an affirmative defense in its answer, Defendant did cite its compliance with the United States regulatory scheme as its eighth and fifty-first affirmative defenses, (Answer at 34, 41), apparently unaware until it received interrogatories that Decedent was a life-long English resident. (Reply Mem. at 10). Therefore the Court does not doubt that if it were to try this case, it would have to decide (a) whether Defendant complied with England's tobacco regulatory scheme; and (b) whether compliance with England's regulatory scheme acts as a defense to civil suits by individual smokers. Page 17 Neither of these issues have been addressed by an English court to date.

  Plaintiff's other claims also demonstrate England's interest in deciding this controversy. Plaintiff's fraud and concealment claims would require Plaintiff to prove that PMI made false statements or concealed facts in England and that, given the knowledge in England of the health risks of smoking, it was reasonable for the Decedent to have relied on PMI's alleged false statements. Plaintiff's breach of express warranty claim depends upon proof that express warranties were made in England. In declining to decide these issues, this Court relies on Judge Connor's opinion in Doe v. Hyland Therapeutics Division, which explained that:

  The forum whose market consumes the product must make its own determination as to the levels of safety and care required. That forum has a distinctive interest in explicating the controlling standards of behavior, and in enforcing its regulatory scheme. The standards of conduct implemented, and the level of damages assessed, will reflect the unique balance struck between the benefit each market derives from the product's use and the risks associated with that use; between the community's particular need for the product and its desire to protect its citizens from what it deems unreasonable risk. The forum's assessment will affect not merely the quality of the produce, but also the price, quantity, and availability to its public. Such an assessment must remain the prerogative of the forum in which the product is used; each community faces distinct demands, and has unique concerns that make it peculiarly suited to make this judgment. We are ill-equipped to Page 18 enunciate the optimal standards of safety or care for products sold in distant markets, and thus choose to refrain from imposing our determination of what constitutes appropriate behavior to circumstances with which we are not familiar.

 807 F. Supp. 1117, 1129-1130 (S.D.N.Y. 1992). It is clear that England considered both public safety and public revenue when regulating cigarettes, (Def. Mem. at 16; Hodges Decl. ¶ 16), and thus, as explained in Hyland Therapeutics, the balance of these competing concerns that is necessary to assess both the standards of conduct implemented and the damages is best left to the forum (in this case England) that made these initial policy decisions. See In re Union Carbide Corp. Gas Plant Disaster at Bhopal, 634 F. Supp. 842, 864 (S.D.N.Y. 1986) ("The Indian government, which regulated the Bhopal facility, has an extensive and deep interest; in ensuring that its standards for safety are complied with. As regulators, the Indian government and individual citizens even have an interest in knowing whether extant regulations are adequate. . . . It would be sadly paternalistic, if not misguided, of this Court to attempt to evaluate the regulations and standards imposed in a foreign country."), aff'd, 984 F.2d 582 (2d Cir. 1993); see also Dowling v. Richardson-Merrell, Inc., 727 F.2d 608, 616 (6th Cir. 1984) ("When a regulated industry . . . is involved, the country where the injury occurs has a particularly strong interest in product liability Page 19 litigation"); Harrison v. Wyeth Laboratories Div. of American Home Products Corp., 510 F. Supp. 1, 4 (E.D. Pa. 1980) ("Each government must weigh the merits of permitting [a product's] use and the necessity of requiring a warning. Each makes its own determination as to the standards of degree of safety and duty of care. This balancing of the overall benefits to be derived from a product's use with the risk of harm associated with that use is peculiarly suited to a forum of the country in which the product is to be used."), aff'd mem., 676 F.2d 685 (3d Cir. 1982).

  4. Avoiding Application of Foreign Law

  New York's choice of law principles require the Court to apply the law of the jurisdiction with the greatest interest in the litigation. Krock v. Lipsay, 97 F.3d 640, 645 (2d Cir. 1996). As discussed above, England's regulatory scheme and the location of the relevant historical events in this case (e.g., Decedent's smoking history, relevant cigarette advertisements and warnings) both dictate that English law applies. This is yet another factor that counsels in flavor of dismissing this action on the grounds of forum non conveniens. Page 20


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