Is Delaware Closing the Door to Foreign Tort Claimants?
Authored by Edward M. McNally
This article was originally published in the Delaware Business Court Insider | March 5, 2014
The Delaware Supreme Court's Feb. 20 decision in an asbestos case brought by an Argentine widow against DuPont Co. is a hot topic in Delaware. Martinez v. E.I. du Pont de Nemours & Co., (Del. Supr. C.A. 669, 2012), upheld the dismissal of the asbestos case despite a vigorous dissent by Justice Carolyn Berger.
Dissenting opinions in Delaware Supreme Court decisions are very rare and that alone generates discussion. In Martinez, the majority opinion takes the time to respond to the dissent, recognizing that Berger makes some good points. Nonetheless, with new Chief Justice Leo E. Strine Jr. as part of the majority (in his capacity as chancellor designated as a justice for this one case), some wonder if this opinion signals an internal rift within the Supreme Court.
Justice Randy J. Holland, the author of the Martinez majority opinion, recently addressed that issue in his public remarks during Strine's investiture. Holland noted that 99 percent of the Supreme Court's decisions are issued without any dissents or even concurring opinions. This evidences the unanimity of the court. The occasional dissent only serves to confirm that the justices do each think for themselves. Indeed, compared to the dissents found in U.S. Supreme Court decisions, the dissent in Martinez is moderate in its tone, though strongly advocated.
More importantly, the current discussions of the Martinez decision properly focus on its long-term implications. For, as Martinez itself points out, "prior law [is] changed" by the decision. For if DuPont can win a dismissal of a case on the grounds that it is an "overwhelming hardship" for it to litigate a case in a court "five blocks" from its corporate headquarters, might not many more defendants also avoid litigation in Delaware for the same reason?
To address this question properly, it helps to start with a brief review of prior law dealing with motions to dismiss based on the doctrine of forum non conveniens. There is some support in the Delaware decisions for almost any argument about what constitutes the overwhelming hardship a defendant must establish to have a plaintiff's case dismissed because the Delaware forum is inappropriate. However, the Delaware Supreme Court has repeatedly declined to permit such a dismissal just because the claim arose outside of the United States and involves issues of foreign law. Even asbestos cases filed by non-U.S. plaintiffs based on conduct outside the United States have been upheld despite claims of overwhelming hardship. The Supreme Court has even reversed dismissals by Delaware trial courts despite applying a standard of review that gives the trial courts discretion to decide forum non conveniens motions. Indeed, DuPont itself previously lost a motion based on forum non conveniens grounds to dismiss an asbestos claim against it by a foreign plaintiff. It is fair to say then that the Martinez decision was a surprise to most Delaware lawyers.
So what are the implications of Martinez? To begin with, it is important to understand that the case involved a tort claim, not a common commercial dispute and, most importantly, not a dispute governed by Delaware corporate law. While Martinez says that no claim will ever preclusively be immune from a forum non conveniens motion, corporate law and commercial disputes are virtually never going to be dismissed on that basis.
In addition, the more removed a complaint is from a court's comfort zone with regard to understanding the applicable law, the more likely it is that it will be dismissed under Martinez. There is something worrisome about asking a Delaware court to decide significant questions of another country's law. There is a real burden in trying to figure out what a foreign state law is when that law is not already clearly set out in that jurisdiction. The Martinez court was clearly influenced by the argument that Argentine law was not clear even to the experts on Argentine law that the parties had testify.
While those points seem clear, what is uncertain is how far the Supreme Court will actually defer to the discretion of Delaware trial courts to deal with forum non conveniens motions. Martinez itself is an example of why this issue is potentially a problem for the Supreme Court. The trial judge who dismissed the Martinez asbestos case was a vocal critic of the Delaware asbestos docket and its big demands on any trial judge. Her concerns were understandable. The volume of the asbestos cases requires the assigned judge to make mostly rulings from the bench on multiple motions after necessarily limited oral arguments. Not all judges like to judge that way and many instead prefer to issue written opinions. Would Martinez have been dismissed by a trial judge more comfortable with asbestos cases?
Of course, forum non conveniens motions must meet the criteria set out in some detail by Delaware law. The trial judge is not entitled to just decide such a motion on his or her feelings for a case. But still, when discretion is involved, so too are unconscious preferences. Drawing the line on what constitutes the "trial court's sound discretion" from what does not is a task the Supreme Court will need to fulfill carefully.
In short, Martinez does seem to liberalize, if only slightly, the ability to win forum non conveniens motions. More of those motions will be filed or the plaintiffs tort bar will avoid Delaware as a forum. What happens next should be interesting.