Talc Manufacturer’s Motion to Dismiss on Forum Non Conveniens Denied

Supreme Court of New York, New York County, July 1, 2020

Glynnis Gale DeKlerk (the decedent) was born in South Africa in 1951 and lived there until 2017, when she and her husband moved to the United Kingdom. She was diagnosed with malignant mesothelioma in February of 2018 and died on January 20, 2019. The plaintiff commenced this action in New York on July 27, 2018 seeking to recover for injuries sustained by the decedent resulting from her alleged exposure to asbestos from talc and talcum powder products manufactured and supplied by Estee Lauder Inc.’s (ELI) and Whittaker, Clark & Daniels, Inc. (WCD). The plaintiff alleges the decedent utilized ELI’s Youth Dew Dusting Powder, Cinnabar Dusting Powder, Translucent Loose Face Powder and Lucidity Loose Face Powder over the course of 45 job related visits and at least 145 days in New York City from 1987 through 2005.

ELI is a corporate affiliate of The Estee Lauder Companies Inc., it is organized under Delaware law, but concedes that it maintains a principal place of business in New York. ELI’s corporate representative, Maryann Alfieri, testified at her October 30, 2018 deposition that the company maintained Global Offices in Melville, New York. She stated that ELI maintained a manufacturing facility in Melville, New York from at least the 1960s. She testified that in the early 1980s research and development moved to Melville, New York and remained there for the period relevant to the decedent’s exposure. Ms. Alfieri testified that ELI’s Youth Dew Dusting Powder was manufactured in Melville, New York from 1980 through 2003.

It is ELI’s contention that even though they have principal places of business in New York, this action should be dismissed on the grounds of forum non conveniens because: (i) the majority of the decedent’s exposure to their talc and talcum powder occurred in South Africa and not New York, (ii) the diagnosis and majority of the decedent’s treatment for mesothelioma took place in the United Kingdom; (iii) the decedent applied for and received benefits related to her mesothelioma in the United Kingdom; (iv) witnesses and evidence are located in the United Kingdom or South Africa which is outside of New York, and litigating in New York would be a burden to New York courts; (v) England or South Africa are readily available as alternative forums, and (vi) even if this action were to stay in New York, the laws of South Africa or England would have to be applied creating a burden on New York Courts, therefore, no nexus exists with the State of New York.

The plaintiff argues the action should remain in New York because: (a) the plaintiff’s choice of forum is entitled to substantial deference; (b) New York is the defendants’ principal place of business, the location from where the asbestos containing talcum powder the decedent was exposed to was distributed and most likely manufactured; (c) the defendants have corporate headquarters in New York; (d) the defendants’ expert witnesses are most likely located in New York; (e) the design and/or development of the product in New York City creates a nexus with the State of New York and (f) this action has proceeded for two years in New York and the defendants have waived their forum non conveniens claims.

Furthermore, the plaintiff contends that the relevant situs is New York, not South Africa or the United Kingdom and the decedent was only exposed to asbestos through bulk purchases in New York of talcum powder and face powder that was manufactured and distributed in New York. The plaintiff argues that neither South Africa nor the United Kingdom are available as alternative forums. South Africa is unavailable because the courts in that country apply “rigid rules of jurisdiction” in claims brought by non-resident plaintiffs against non-resident defendants. The plaintiff no longer resides in South Africa rendering the exercise of jurisdiction extremely unlikely. The United Kingdom is likewise unavailable because: (1) no contingency fee cases are permitted there; (2) there are no jury trials or loss of consortium claims allowed; (3) discovery is limited, costly and to be paid out of pocket; (4) discovery from third-party witnesses, to refute the defendants’ claims, is located in New York; and (5) although there is products liability law in England, non-occupational exposure claims are typically not brought because there are no barristers or solicitor’s willing to proceed against a manufacturer or seller

CPLR § 327(a) applies the doctrine of forum non conveniens, authorizing the court in its discretion to dismiss an action on conditions that may be just, based upon the facts and circumstances of each particular case. In the Matter of New York City Asbestos Litig., 239 AD2d 303, 658 NYS2d 858 (1st Dept. 1997); Phat Tan Nguyen v Banque lndosuez, 19 AD3d 292, 797 NYS2d 89 (1st Dept. 2005). In determining a motion seeking to dismiss on forum non conveniens grounds “no one factor is controlling” and the court should take into consideration any or all of the following factors: (1) residency of the parties; (2) the jurisdiction in which the underlying claims occurred; (3) the location of relevant evidence and potential witnesses; (4) availability of bringing the action in an alternative forum; and (5) the interest of the foreign forum in deciding the issues. Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 467 NE2d 245, 478 NYS2d 597 (1984). “The rule rests upon justice, fairness and convenience and we have held that when the court takes these various factors into account in making its decision, there has been no abuse of discretion reviewable by [the] court.” Id.

The court stated further, defendants that have a substantial presence in New York, as well as “ample resources” do not suffer a hardship for litigating in New York. A greater potential hardship is suffered by the plaintiff that is required to litigate in a foreign jurisdiction, like England, that does not recognize trial by jury, or where there is no ability to arrange for contingent fees. Neville v. Anglo American Management Corp., 191 AD 2d 240, 594 N.Y.S. 2d 747 (1st Dept., 1993); Bacon v. Nygard, 160 A.D. 565, citing to Wilson v. Dantas, 128 AD 3d 176, 9 NYS 3d 187 (1st Dept., 2015)aff’d 29 NY 3d 1051, 80 NE 3d 1032, 58 NYS 3d 286 (2017).

Weighing all the factors, the court found here the defendants have failed to meet their burden of showing that this action should be dismissed, in favor of an alternative venue, on the grounds of forum non conveniens. That defendants maintain a principal place of business in New York State is not the only nexus of this action to the State of New York. Although the decedent resided in South Africa during the majority of her use of defendants’ talc and powder products and although she received her medical treatment in the United Kingdom, she purchased the Youth Dew Dusting Powder, Cinnabar Dusting Powder and Loose Face Powder that allegedly exposed her to asbestos in New York. The plaintiff has also shown that the transfer of this action to South Africa is not possible and further established that England is not an alternative forum. The plaintiff, therefore, has demonstrated that there is a lack of alternative forum and this lack of alternative forum warrants keeping the case in New York.