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1 Southern New Jersey Office Relocates: 100 Century Parkway, Suite 200 Mt Laurel, New Jersey Main Number: Fax: Forum Non Conveniens - A True Story By: Dawn Dezii, Esquire FORUM NON CONVENIENS - A TRUE STORY Recently, the New Jersey Appellate Division overturned a New Jersey Superior Court Ruling in which The Honorable Charles A. Little dismissed a number of claims for asbestos exposure filed in Camden County, New Jersey by Spanish Citizens. In Varo v. Owens-Illinois, et al., Superior Court of New Jersey Appellate Division Docket No. A , Plaintiffs appealed a ruling dismissing 16 claims filed by Spanish Citizens against Owens-Illinois for exposure to asbestos while working aboard American naval vessels at shipyards located in Spain. The matters arose out of the Rota Shipyard and the Cadiz Shipyard. The Plaintiffs worked as tradesmen allegedly aboard United States naval vessels and were employed either by private contractors or directly by the United States Department of the Navy. Exposure to asbestos was alleged among the various Plaintiffs from the period of 1950 until Owens-Illinois, a Toledo, Ohio-based company manufactured Kaylo pipe covering and cement between 1948 to Owens-Illinois argued that the matters were subject to dismissal on the basis of forum non conveniens. The New Jersey Appellate Division disagreed. Prior to the ruling in Varo v. Owens- Illinois one of Margolis Edelstein s longstanding clients was sued in the Philadelphia Court of Common Pleas by the Locks Law Firm for asbestos exposures to Spanish Citizens at the naval bases at Rota and Cadiz. Unfortunately, the then sitting Philadelphia Court of Common Pleas trial judge was of the same opinion as the New Jersey Appellate Division, and indicated to the parties at the initial case management level that he was not inclined to dismiss the cases based on forum non conveniens. Unfortunately, there was 1

2 also an indication that the court was going to allow Plaintiffs counsel to conduct all discovery including discovery depositions, de bene esse depositions and defense medical examinations in Spain. Obviously, our client was placed in an extremely dangerous position in order to litigate these cases. The defense we developed for our client was based upon a four (4) pronged effort. This effort included the use of Margolis Edelstein s asbestos litigation team, the retention of a naval archivist, the retention of an on ground investigator in Spain, and the retention of Spanish attorneys. What our defense effort uncovered was that the Rota Shipyard was one of the navy s largest and most important European installation and began as a joint venture between the US Navy and Spanish government. Located on the Bay of Cadiz, construction of the facility began in The shipyard began receiving United States vessels in or around 1959, and the shipyard operated largely as a repair facility for vessels heading back to the United States. The construction of the facility was handled by an American firm Brown-Raymond-Walsh, but a large part of the construction was subcontracted to Spanish and/or joint United States/Spanish contractors. An airfield was also constructed wherein the US Navy acted as the agent for the United States Air Force. Again, that construction was coordinated between Spanish contractors and/or other foreign subcontractors. The naval bases at both Rota and Cadiz, are considered part of Sovereign Spain. However, the port and other base facilities are used jointly via an agreement between the Untied States and Spain which was signed in All of the plans and blueprints were bilingual. In 1960, the Rota base was dedicated to service the United States nuclear submarine fleet. The first nuclear submarine to port at Rota was the USS Nautilus. However, throughout Rota s history various vessels docked there including the USS Valley Forge, USS Enterprise, the USS Holland, and others. The dock of the Port City of Cadiz was used while the naval base was under construction. Secondly, our investigatory effort focused upon our client. Our first step was to determine whether our client appeared on the United States Navy s Qualified Purchaser List and the time period our client was approved as a vendor. This information was very useful to determine if our client was even selling materials to the United States Navy, and if so, what our client was selling and when. While our client was on the United States Qualified Purchase List, we could not determine from this information exactly if the materials were purchased, and if so, where the materials were eventually used or by whom. Our client s records only indicated sales to the United States Navy in general, and did not indicate anything further as to where those materials were shipped. At that juncture, we hired a naval archivist who was most useful in developing Rota s construction history, the history of how the facility was used, and the types of vessels which ported at Rota. Our naval archivist was extremely effective in providing us with a list of each and every vessel that ever called at Rota. We located potential witnesses such as former United States Navy personnel stationed at the facility during the 2

3 relevant time periods and was able to locate plans and specifications for the construction of the facility. We also located plans and specifications for the vessels which docked at Rota. Based upon that information, we were able to determine which vessels were ported, during which time periods, and then had at least a base from which to determine what type of work might have been performed based on the length of time that the vessel remained at the facility, and the type of vessel. We could realistically assess the types of individual personnel which would have been allowed to board the vessels. For instance, nuclear submarines were highly classified vessels and therefore, most likely, foreign nationals were not allowed access to those vessels. Thirdly, we hired a private investigator who partnered with Spanish attorneys to conduct our on the ground investigation. This investigation included not only factual but legal issues. Our Spanish lawyers assisted with the analysis of various treaties, including NATO treaties, Spanish law, the Spanish Social Security system, the Spanish equivalent of a Workmen s Compensation system, the Spanish legal system, and information as to whether Spanish individuals had an avenue of recovery in Spain for their alleged injuries. Our field investigator met with the various labor unions in the area to determine who or what type of Spanish worker would have been allowed to board American naval ships. Our field investigator also was able to check the credentials of alleged diagnosing physicians. Our field investigator was also able to verify that the named Plaintiffs were in fact Spanish nationals and, in fact did exist. The legal component which was handled by Margolis Edelstein s asbestos litigation team included analysis of various legal issues and the filing of various motions. We moved to transfer cases to the United States District Court for the Eastern District of Pennsylvania based on issues involving foreign subject matter, foreign individuals and Federal Enclave arguments. Additionally, we researched and briefed such issues including forum non conveniens, federal enclave jurisdiction, choice of law issues, etc. While our four-pronged defense was most effective in convincing Plaintiffs counsel that we were fully prepared to litigate these cases in Pennsylvania, the effort was an extremely expensive undertaking. While we did not proceed to trial on these cases, we were able to develop a litigation plan and a defense plan that we feel would have been very effective in the defense. The Varo case also expands jurisdiction in New Jersey and may allow for the filing of more suits in New Jersey by forum shopping plaintiffs. We have been advised by various Plaintiffs law firms, that they have intentions of conducting research throughout Europe at various naval bases which were frequented by United States vessels 3

4 to determine whether individuals worked on these vessels and are suffering from an asbestos-related illnesses. We understand that there are potential facilities in Ireland, England, Portugal, Italy, and other Mediterranean locations. The New Jersey cases being litigated by Owens-Illinois were transferred to the Superior Court of New Jersey, Middlesex County and are currently under the case management by the Special Master. It is our understanding that those cases may be litigated fully by Owens-Illinois. Should anyone require copies of any of the articles or case law mentioned, please contact Dawn Dezii, Esquire at or Death of the One Fiber Theory: How Much is Enough? By: Jeanine D. Clark, Esquire Plaintiffs have sought to extend liability to an increasing range of defendants, particularly in mesothelioma cases through use of experts who essentially opine that each exposure to a friable asbestos containing product is a substantial contributing factor to the development of plaintiff s disease. The leading case in New Jersey establishing a party s burden on medical causation in an asbestos personal injury action is Sholtis v. American Cyanamid Co., 238 N.J. Super. 8 (App. Div. 1989). The court in Sholtis examined the extent of exposure a plaintiff must demonstrate in order to establish liability as to an individual defendant. The court noted regarding the issue of proximate cause that the contact between a plaintiff and the defective product must be sufficiently significant so that a reasonable jury could determine that the product was a substantial factor in bringing about the plaintiff s injury. Id. at 16. The court concluded that in order for a plaintiff to sustain a cause of action in asbestos personal injury matter, he or she must demonstrate exposure to the defendant s friable asbestos-containing product on a frequent, regular and proximate basis. Id. at 31, 35. The Sholtis test, however, has been rejected in mesothelioma actions. The court in Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304 (App. Div. 1997) recognized, mesothelioma is not dose-dependent and that relatively small amounts of asbestos can cause this condition. Id. citing, Rotondo v. Keene Corp., 956 F.2d 436 (3rd Cir. 1992). Thus, New Jersey courts have not strictly enforced the Sholtis prongs in mesothelioma actions, holding that a plaintiff need only demonstrate that a defendant s friable asbestos-containing product was a substantial factor in bringing about his or her disease. Further, plaintiffs experts have continually stretched their opinions regarding the amount of asbestos material and friable asbestos fibers which would constitute a substantial contributing factor to the development of 4

5 mesothelioma. The Supreme Court of Pennsylvania recently had the opportunity to review this issue and rejected the so-called One Fiber theory. Gregg v. V-J Auto Parts Co., 596 Pa 274 (2007). While New Jersey is not a One Fiber theory jurisdiction even in mesothelioma actions, plaintiffs experts in mesothelioma claims have come close to taking the position that each and every exposure constitutes a substantial contributing cause to the development of the disease. In adopting a flexible balancing type test using frequency, regularity and proximity, the court rejected the so-called One Fiber theory holding: We do not believe that it is a viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation in every direct evidence case. The result, in our view, is to subject defendants to full joint-and-several liability for injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm. Id. at 292. Rejection of the One Fiber theory can be beneficial to the defendants seeking a grant of a motion for summary judgment. However, defendants unsuccessful in a motion for summary judgment who are forced to prove cross-claims against settled defendants in New Jersey litigation often use the plaintiffs expert s attenuated causation theories to support cross-claims. With the continued decrease in the number and types viable defendants, we anticipate that courts in various jurisdictions will be called upon to address the viability of the One Fiber theory and other less stringent standards. Should anyone require copies of any of the articles or case law mentioned, please contact Jeanine D. Clark, Esquire at or

6 Headlines in Toxic Tort Litigation A California Jury Reaches Verdict in Favor of Plaintiffs Where a U.S. Citizen Claims Exposure to Asbestos in Iran. In August, 2008 a California jury awarded nearly $15,000,000 to a U.S. citizen claiming exposure to asbestos and resulting development of malignant mesothelioma in connection with work he performed at an Iranian refinery. The issue of the appropriateness of the forum was raised late in the litigation and the California court found insufficient evidence that Iran had a significant interest such that its law should be applied. Unusual Verdict in Wrongful Death Mesothelioma Action in Middlesex County. The estate of a deceased worker who developed malignant mesothelioma as a result of exposure of asbestos-containing products was awarded $335,000 in wrongful death damages, $255,000 in lost wages and compensation of $48,250 for the per quod claim of the surviving spouse. The jury made no award for the decedent s pain and suffering. There were two defendants in the verdict sheet, Georgia Pacific who had settled with the plaintiffs prior to trial and Union Carbide who proceeded to trial. Although somewhat unusual, the jury assessed 93% of the liability to the settled defendant and only 7% to Union Carbide. Information contained within this newsletter is for informational purposes only and should not be construed as legal advice. This newsletter does not create an attorney-client relationship. 6

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