Fla. Court Reverses Order Dismissing 83 Cases for Forum Issues

November 17, 2006 – Media Coverage

WEST PALM BEACH, Fla. - A Florida appellate court has reversed the dismissal and remanded the claims of 83 non-resident plaintiffs, stating that the evidence before the trial court was insufficient to support a finding of forum non conveniensBaranek, et al. v. American Optical Corp., et al., Nos. 4D05-9 through 4D05-94 (Fla. Ct. App., 4th District).

In a Nov. 15 opinion, Florida's 4th District Court of Appeal said that the Palm Beach County Circuit Court erred in concluding that adequate, alternative forums existed wherein plaintiffs' claims could be re-instituted against the 53 defendants named in each complaint.

Concerned about the number of out-of-state asbestos filings in Palm Beach County, the circuit court had issued an order directing plaintiffs to show cause as to why their cases should not be dismissed on forum non conveniens grounds.

Following a hearing, the circuit court retained jurisdiction over one case that alleged exposure in Palm Beach County, transferred 11 cases to other Florida counties and dismissed the 83 cases at issue under forum non conveniens. The 4th District said that 14 of the 83 plaintiffs allege that some of their exposure to asbestos occurred in Florida.

The circuit court, however, found that private and public interest factors favored dismissal of the cases because access to evidence was greater in various alternative forums (Alabama, Wisconsin, Rhode Island, Kentucky, Pennsylvania, California, New Jersey, New Hampshire and Massachusetts) and the cases had no connection to Palm Beach County.

The circuit court also found that the plaintiffs could reinstate their claims without undue prejudice in the alternative forums.

In its review on appeal, however, the 4th District found the circuit court made no specific findings regarding the defendants' activities or actions in the proposed alternative forum states that would permit a conclusion that plaintiffs would be able to bring suit against each of the 53 defendants in those alternative forums.

According to the appellate court, plaintiffs' exposure sheets list the defendants' names, the type of product, the location of the job site where the exposure occurred and the time frame during which the exposure occurred.

'This information . . . tells us only where the product wound up - not how [it] got there,' the opinion states. '[W]ithout knowing the nature of the business activities that resulted in a product's presence in a particular location, there is simply not enough evidentiary support to find that all the defendants purposefully availed themselves of the markets of the alternative forum states and all will be amenable to process in those states.'

The 4th District found illustrative the case of Dennis Boyd, a Maine resident for whom the circuit court found New Hampshire to be an alternative forum.

Boyd's exposure sheet states that he was exposed to 'asbestos containing packing and gaskets' manufactured by A.W. Chesterton Co. while on board the USS Independence in Norfolk, Va., and while at Simplex Wire & Cable in Newington, N.H.

For purposes of jurisdiction under New Hampshire's long-arm statute, the 4th District said that required minimum contacts are established when a defendant 'purposefully directs' his activities to residents of the forum state, and the litigation results from alleged injuries that 'arise out of or relate to' those activities (citing Lex Computer & Management Corp. v. Eslinger & Pelton, P.C., 676 F. Supp. 399 [D. N.H. 1987]).

The 4th District found the information supplied in Boyd's exposure sheet insufficient to conduct the required analysis under New Hampshire law.

'All we know from the exposure sheet is that a product made by A.W. Chesterton Company found its way into a building in Newington, New Hampshire, and that plaintiff Boyd was in that building,' the opinion states. 'We do not know whether A.W. Chesterton Company ever engaged in business in New Hampshire, marketed to New Hampshire, or engaged in business with some other party and placed its product into the stream of commerce knowing the product would likely end up in New Hampshire.'

The 4th District also noted that the circuit court's order failed to address the fact that its dismissal on forum non conveniens grounds was not precipitated by a motion filed by the defendants but, instead, was brought about by the trial judge, and that one defendant even objected. Plaintiffs, therefore, could potentially suffer undue prejudice in the alternative forums under statutes of limitations, the 4th District said.

Florida law does not authorize a trial court to require a non-moving, objecting defendant to waive a statute of limitations defense or to stipulate that it will treat the claim, once re-filed in the alternative forum, as filed on the same date it was filed in Florida, the 4th District explained.

The court stated that its reversal is without prejudice to the trial court's right to revisit the issues and, again, order dismissal provided all factors under the forum non conveniens doctrine are satisfied.

David A. Jagolinzer, Case A. Dam and James L. Ferraro of The Ferraro Law Firm in Miami represent the plaintiffs.

Counsel for the defendants are Albert H. Parnell, Nathan M. Thompson and Evelyn Fletcher Davis of Hawkins Parnell & Young in Atlanta.

Document is Available Call (800) 496-4319 or Search www.harrismartin.com Opinion Ref# ASB-0612-01

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