Global Tort Litigation

Once upon a time, it seemed the 1980 ruling in  World-Wide Volkswagen would control forever, and that jurisdictional jurisdictional issues were well-settled in the US  for tort claim cases.  Today, the world is not so simple, as illustrated by (among others) prior posts here, here and here,  and innumerable articles around the internet.

Last year, in a September 17, 2017 post, I noted  jurisdiction arguments going up the Delaware Supreme Court on global jurisdiction issues in tort cases. Now, there’s been a ruling, and it’s interesting, with implications that illustrate another of the many double-edged swords extant within the litigation industry. Happily, insight on the ruling is available from Delaware lawyers who really understand tort law and commercial law.  Accordingly, the following is a guest post from Paul Bradley, a named partner at  Maron Marvel Bradley Anderson & Tardy LLC. As usual, the analysis is cogent and very much appreciated.

“Delaware Supreme Court Holds that Determination that an Adequate Alternative Forum Exists is Not Required for Dismissal on Forum Non Conveniens Grounds

The Delaware Supreme Court this week has definitively joined the minority of courts holding that the availability of an alternative forum, while a factor in a forum non conveniens analysis, is not a threshold requirement. Aranda, et al. v. Philip Morris USA Inc., Consolidated Nos. 525, 526, 527, 528, 529, 530, 2016 (Del. Supr. March 22, 2018).

“[T]reating the issue as a factor to be considered, rather than as a requirement, gives the issue the weight it deserves in the forum non conveniens analysis,” the Court stated. Taking into consideration the complexity of transnational litigation, and the strain such litigation places on judicial resources, the Court wrote: “Delaware has no real connection to the dispute except for the defendants’ place of incorporation. It is not unfair to suggest that rather than requiring cases to proceed in Delaware in the absence of an alternative forum, the Superior Court should consider, on a case-by-case basis, whether the court’s resources should be deployed to resolve cases with little connection to Delaware – as the court did here.” The Court also addressed the concerns of international comity. “The approach we adopt here might encourage foreign jurisdictions to rethink laws and rules shifting to the U.S. course disputes that are more clearly connected to their own countries and citizens.” Further, the Court said it was not ignoring the concern that foreign plaintiffs injured by Delaware corporations might not be allowed to sue those corporations in Delaware. “The availability of an alternative forum in transnational cases is treated as a factor in the forum non conveniens analysis,” and “[t]he degree of the Delaware corporate defendant’s connection to the alleged wrong will still be considered.”

The Court upheld a Superior Court ruling by Judge Vivian L. Medinilla that denied a motion for reargument of her ruling granting the defendants motion to dismiss based on forum non conveniens. The action that was dismissed was by Argentine tobacco farmers and their children against tobacco cultivators (TCs) and an herbicide manufacturer (HM), arising from birth defects allegedly caused by the TCs’ use of the herbicide, dismissal on the grounds of forum non conveniens was warranted as to the TCs because they would be subject to overwhelming hardship if required to litigate in Delaware based on evaluation of the Cryo-Maid factors, including that all discovery would have to be conducted in Argentina and Argentine law applied to at least a majority of the issues. Judge Medinilla held that dismissal under Del. Super. Ct. R. Civ. P. 9(b) was proper as to the HM because the complaint failed to adequately identify the alleged tortfeasor, and it did not plead with specificity which HM caused the alleged harm, what products caused the harm, how the harm occurred, and when that harm occurred.

In granting the motion to dismiss on forum non conveniens grounds, the Delaware Superior Court did not ensure that the Philip Morris Defendants could be sued in an alternative forum. In its appeal, the Plaintiffs/Appellants sought to have the Delaware Supreme Court require the Philip Morris Defendants waive any objection to jurisdiction in Argentina, and to waive any limitations defenses based on time passed since the case was originally filed.

For questions, contact Paul A. Bradley, 302-472-1792, pab@maronmarvel.com.

Maron Marvel Bradley Anderson & Tardy LLC

Maron Marvel was founded in 1996 in Wilmington, Delaware by experienced trial and litigation management attorneys who came out of the traditional law firm with a desire to build a better model to serve clients. Over the past twenty years, Maron Marvel grew from a boutique toxic tort practice to a national powerhouse. With attorneys licensed to practice in twenty-one states and with twelve offices in ten states — Delaware, Pennsylvania, Illinois, Louisiana, Mississippi, Missouri, New Jersey, New York, South Carolina, and Texas — we have assembled a diverse and inclusive team of lawyers and other professionals with extensive experience and specialized skills to offer our clients the best representation possible.

Maron Marvel provides litigation services to companies in the areas of business and commercial litigation, products liability, bankruptcy and creditors’ rights, environmental regulation and personal injury. The firm also acts as national trial counsel and provides national coordinating services and risk management for clients in the areas of mass toxic tort, products liability, personal injury, environmental regulation and litigation.”

In a sign of the times, Kevin LaCroix at D & O Diary published an October 12, 2016 post titled:  “Book Review: An Updated Global Guide to Directors’ Liability and Indemnification.”  I mention it here simply to point out the messages implicit in the existence of the book, and a knowledgeable commentator spending the time to review the book. Among other things, consider the implicit messages about the global litigation environment and insurance policies that can be triggered. Then, bear in mind the fact that availability of insurance in the US was a powerful factor in the rise of the litigation industry in the US, a point traced and explained by Stephen C. Yeazell in an influential article:  Refinancing Civil Litigation, 51 DePaul Law Review 183 (2001). Putting the two points together, one can see the implications for the continued growth of the global litigation industry.

As Professor Coffee pointed out in his new article, mass tort claiming has indeed gone global, as some of us expected. More evidence of that reality arrived with new data about $9 billion of claims through about 1,400 lawsuits –  in Germany – against VW. The numbers are from a September 21, 2016 article in the WSJ. The number of claims is 1/2 the usual annual total for the district court, so the US Chamber of Commerce doubtless will declare the court a litigation hellhole. The article introduction states the following:

“BERLIN—Investors are seeking around €8.2 billion (around $9.10 billion) in damages from Volkswagen AG on losses suffered when the German car maker’s shares plunged after U.S. authorities disclosed a year ago that the company had cheated on emissions tests, a German district court said Wednesday.

The Braunschweig district court, which has jurisdiction over Volkswagen claims in Germany, said it had received 1,400 claims against the car maker so far, including law suits filed by U.S. pension funds, asset funds from German states, and individual investors. U.S investors that are part of the German claim include CalPERS.

The court said the number of claims against Volkswagen so far was equal to half the civil claims the court usually receives in an entire year. Because lawyers aren’t allowed to file such claims electronically in Germany, the court said it had to acquire additional warehouse facilities to accommodate the massive amount of files.”

Europe continues to see a growing focus on asbestos topics, including both non-litigation and litigation-related topics. An example arises from the new European Asbestos Forum, an international asbestos conference that will be held on May 27th in Amsterdam, the Netherlands. The location (I am told) “is a gorgeous hotel;  the beautiful 5-star NH Grand Hotel Krasnapolsky on Dam Square.”  Yvonne Waterman is the organisor; she is a smart Netherlands lawyer with extensive asbestos expertise and experience, generally towards the claimant’s side.  We met some years ago in London and she displayed a wealth of knowledge.

The conference also illustrates disease advocacy groups and other NGOs making increasing use of globe-spanning asocial media. For example, the conference has   a Facebook page, and a presence on Twitter: @EAFConference. The conference  web site explains the following and lays out the agenda. Note especially the following agenda items:

14.20 – 14.40 National diversity of compensation schemes, global economic relations and labour standards in supply chains, Christian Lahnstein LL.M. (Rachel Carson Center, Ludwig Maximilians Universität Munich)

“15.20 – 15.40 Asbestos related lung cancer – an underestimated causal link, Prof.Dr. Thomas Kraus (Institut für Arbeitsmedizin und Sozialmedizin Aachen)”

The conference includes a wide range of speakers and topics. Some in the defense camp in the US will discredit the entire conference because Dr. Lemen is a lead speaker.  That said, that view is rather limited. Multi-national entities need to recognize the reality that US defense camp views of regulation and litigation are not universally shared. Indeed, in Europe, not all view labour and employers as adverse, and there are a variety of compensation approaches around the world, as will be explained Mr. Christian Lahnstein (who is from the reinsurance world and is very knowledgeable).  It’s also worth noting that Europe  is the home for some cutting edge molecular research related to asbestos, cancer, genetics and epigenetics that is largely unknown in the US. (Sadly, almost all US defense interests continue to fail to invest in research regarding asbestos diseases even though those same interests are paying money to settle an enormous proportion of the annual mesotheliomas in the United States.)

The entire agenda is as follows:

“The aim of the Forum is to increase international networks and spread the best and newest asbestos knowledge at a high professional level, providing the best of global speakers and specialists. A delicious conference dinner will be served in the monumental Winter Garden of the venue.

08.45 – 09.15 Registration and light continental breakfast
09.15 – 09.25 Welcome, Yvonne Waterman (organiser, European Labour Forum)
Introduction of the Chairman, Hans van der Wart (Shield Group International)

Plenaire sessie / plenary session in the Grand Ballroom

09.25 – 09.50 Opening speech, Marcelis Boereboom (Director General of the Ministry for Social Affairs and Employment)
09.50 – 10.10 A message from Independent Asbestos Training Providers, Wayne Williams (IATP)
10.20 – 10.40 Improving asbestos labour conditions by sharing information, Mark Wit (Oesterbaai)
10.40 – 10.50 Break
10.50 – 11.10 What asbestos means to me, Eric Jonckheere (ABEVA)
11.10 – 12.00 Keynote speech. High-risk occupations: the need for prevention, Dr. Richard Lemen USPHS (ret.) Ph.D., M.S.P.H., retired US Assistant Surgeon General and Acting Director of US National Institute for Occupational Safety and Health

12.00 – 13.00 Luncheon in the Winter Garden

Photo exhibition, Tony Rich a.k.a. Asbestos Hunter / Asbestorama
Asbestos cabinet, Harry Vonk (Teamplayer)

A Asbestos & Labour

13.00 – 13.20 The Italian fight against Eternit, Nicola Pondrano (CGIL)
13.20 – 13.40 Asbestos and the installation sector: a fine line between H&S and environment, Arco Engelen (Dutch Social Partners)
13.40 – 14.00 The Dutch approach of asbestos victims: plenty of room to grow! Lydia Charlier LL.M., Beer Lawyers
14.20 – 14.40 National diversity of compensation schemes, global economic relations and labour standards in supply chains, Christian Lahnstein LL.M. (Rachel Carson Center, Ludwig Maximilians Universität Munich)
14.40 – 15.00 Break
15.00 – 15.20 Turkish asbestos awareness and regulation increasing, -beleid, Dilan Yesilyurt (Turkish Ministery for Labour and Social Security, Occupational Health and Safety Institute)
15.20 – 15.40 Asbestos in schools, Wayne Williams (DMW Safety)
15.40 – 16.00 Panel debate
16.00 – 16.15 Break and return to the Grand Ballroom

B Asbestos & Technological Developments

13.00 – 13.20 The asbestos incubator technique, Ruud Janssen (Dutch asbestos removal company Het Zuiden)
13.20 – 13.40 The use of technology to deliver competence, Nick Garland (Assure Risk Management)
13.40 – 14.00 Asbestos stripping in the USA, Tony Rich (DMW Safety)
14.20 – 14.40 English asbestos stripping innovations, Mark Winter (SMH Products)
14.40 – 15.00 Break
15.00 – 15.20 The importance of a real estate register, Ir. Joris Gribnau (Shield Group International)
15.20 – 15.40 Differences in European asbestos legislation and practice, Dr. Herm Zweerts (Arcadis)
15.40 – 16.00 Panel debate
16.00 – 16.15 Break and return to the Grand Ballroom

C Asbestos, European Policy & Raising Awareness

13.00 – 13.20 Asbestos Removal Companies: regulatory control in Spain, dr. Gonzalo Zufia (the Spanish Asbestos Removal Contractors Association ANEDES)
13.20 – 13.40 The importance of asbestos awareness, Barry Robson
13.40 – 14.00 Asbestos: distorted risk perception, Linda Reinstein (Asbestos Disease Awareness Organization)
14.20 – 14.40 Hopeful treatment of asbestos cancers, Prof. Nico van Zandwijk (Asbestos Diseases Research Institute)
14.40 – 15.00 Break
15.00 – 15.20 Asbestos Liability in the US: The never ending story, Daniël Maranger LL.M. (Munich Re)
15.20 – 15.40 Asbestos related lung cancer – an underestimated causal link, Prof.Dr. Thomas Kraus (Institut für Arbeitsmedizin und Sozialmedizin Aachen)
15.40 – 16.00 Panel debate
16.00 – 16.15 Break and return to the Grand Ballroom

Plenary session in the Grand Ballroom

16.15 – 16.25 Special Recognition Award
16.25 – 16.30 Concluding speech, Yvonne Waterman and Hans van der Wart (Shield Group International)

Convivial closing drinks for networking

Optionally: Conference Dinner”

In the NFL concussion litigation, the federal judge overseeing the case has now ordered release of supporting financial calculations for the preliminarily approved class action settlement. The order follows motions for access by players and media.

Contrast that disclosure order against the approach in asbestos litigation. Asbestos bankruptcies are de facto class action proceedings. Nonetheless, bankruptcy judges routinely approve stipulations to hide financial information, and parties on all sides are involved in sealing up the data. The recent Garlock trial sealing order is the poster child example of sealing run amuck. Meanwhile, the same thing happens in the underlying asbestos litigation – settlement information is hidden, and so judges and lawyers operate on a combination of myths, facts, and rumors.

Will mass tort litigation ever become fully transparent?

Cross-border litigation with UK lawyers  and non-lawyers (and others) is becoming easier for US lawyers. An example arises from ABA Formal Opinion 464. An ABA Journal article from November 2013 provides background and color.

The bottom line is that the opinion allows cross-border fee sharing with nonlawyers, in some circumstances. It states:

“In summary, a division of a legal fee by a lawyer or law firm in a Model Rules  jurisdiction with a lawyer or law firm in another jurisdiction that permits the sharing of legal fees with nonlawyers does not violate Model Rule 5.4(a) simply because a nonlawyer could  ultimately receive some portion of the fee under the applicable law of the other jurisdiction.”

The opinion framed the issue as follows:

This opinion considers whether a lawyer subject to the Model Rules may divide a legal fee with another lawyer or law firm practicing in a jurisdiction where the other lawyer or law firm might eventually distribute some portion of that fee to a nonlawyer.  In contemporary practice, lawyers routinely work with lawyers from other law firms, including lawyers and law firms in other jurisdictions, to represent clients in particular matters. The August 2012 amendments to the Model Rules expressly recognize these common arrangements. New Comment [6] to Model Rule 1.1 explains that a lawyer may retain or contract with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client anddescribes how a lawyer should approach these relationships with both the client and the other lawyers.

Sometimes the other lawyers with whom a lawyer may work are admitted and practice in other jurisdictions, both within and outside the United States, a situation that has become morecommon with the growth of national and international commerce. Those other jurisdictions may have professional conduct rules identical or similar to Model Rules 1.5(e) and 5.4(a), which dealwith the allocation of legal fees among lawyers and nonlawyers. But some jurisdictions, like the District of Columbia and the United Kingdom, have rules that differ significantly from Model.” 

An online page presents information about this upcoming global conference on consumer products. The world continues to get smaller with increases in cross-border communication. The page provides the following overview:

“International Consumer Product Safety Conference – Brussels, Belgium

June 17-18, 2014
Thank you for your interest in ICPHSO’s 10th International Symposium. ICPHSO will again provide an unparalleled multi-stakeholder platform upon which to discuss the consumer product safety issues confronting us today. The focus of the conference is on the practical collaboration that has developed between regulators and how we can rise to the challenges we face in today’s changing marketplace. This will allow us to build on the discussion of priorities for international collaboration that was the theme of the last ICPHSO meeting in Brussels in 2012.

Sessions will address the challenges posed by topical issues and provide an opportunity to review the different practical collaboration initiatives already underway and explore the potential for collaboration in other areas. Sessions are being developed in respect of market surveillance, recall effectiveness, the online marketplace, communicating important information about safety, tracking and traceability, identifying emerging issues from research and setting priorities.

The ICPHSO meeting will again anchor an International Product Safety Week. The week of meetings will bring together regulators, the regulated community, service providers and consumer representatives with a single focus on non-food consumer product safety. The commitment of the regulators to international collaboration is evidenced by the high level Tri-lateral summit that will be held the same week between the EU, China and the USA. Other confirmed events include a meeting hosted by the European Commission on the changing Consumer Product Safety and Market Surveillance legislation in the European Union and a workshop to be held on market surveillance by PROSAFE (the Product Safety Enforcement Forum of Europe). More details on International Product Safety Week can be found on the web site of the European Commission at http://ec.europa.eu/consumers/events/ipsw_2014/index_en.htm. The number of attendees to the ICPHSO conference is limited to a first come first served basis. Please click on the registration tab to register for this must attend meeting.
Bruce Farquhar
Conference Chair