David Van Der Velde (deceased) by and through his Executrix Gabriella Van Der Velde v Philip Morris Incorporated
United States District Court, Southern District of New York, 9 January 2004
The Plaintiff brought the action in respect of her deceased husband whose injury and death were allegedly caused by smoking cigarettes manufactured and sold by Philip Morris Incorporated. The deceased was a life-long citizen and resident of England whose smoking was largely confined to England. The Defendant's motion to dismiss the action on grounds of forum non-conveniens was successful.
Determination of forum non-conveniens involves a three stage process: (1) what deference is owed to the plaintiff's choice of forum; (2) whether an adequate alternative forum exists; and, (3) balancing the public and private interests.
The court generally defers to the plaintiff's choice of forum. Here the deceased was an English resident. The claim was made in America because of the high damages awarded; the court found that it was "forum-shopping" to gain a tactical advantage; as such it was afforded very little deference.
An alternative forum is adequate if the defendants are subject to service of process and the forum permits litigation of the subject matter of the dispute. Here the conditions were fulfilled. The Court was unimpressed with the Plaintiff's concerns about funding and the risks of litigation because of the loser pays costs rule which applies in England. They did not affect the adequacy of the remedy.
In considering the balance of private interests and public interests the Court found that England was the "country with the most significant factual relationship to this litigation" and that it had a "strong interest in deciding the subject matter of this controversy". The Court found that this factor tipped "decisively in favour of litigating this action in England". Other considerations included the considerable burden on the US justice system of hearing cases which had little to do with America.
Comment
America provides an attractive environment for product liability claims: the availability of contingency fees to fund litigation, high damages awards, jury trials, low risk (the loser pays rule does not apply). It thus attracts foreign litigants, forum shoppers who seek to exploit such advantages and often have little connection with America. This case shows the careful balancing exercise that the US court undertakes in determining the appropriate forum.
For further information please contact Anthony Barton at [email protected] .
Social Media cookies collect information about you sharing information from our website via social media tools, or analytics to understand your browsing between social media tools or our Social Media campaigns and our own websites. We do this to optimise the mix of channels to provide you with our content. Details concerning the tools in use are in our Privacy Notice.