RAYMOND REBBECK VS. HONEYWELL INTERNATIONAL, INC. (L-4286-16, L-6318-15, L-2314-16, AND L-6817-16, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-4989-16T1
A-4990-16T1
A-4991-16T1
A-3204-17T1
RAYMOND REBBECK and SHELIA
MARY REBBECK,
Plaintiffs-Appellants,
v.
HONEYWELL INTERNATIONAL,
INC., f/k/a Allied Signal, Inc.,
as Successor in the Interest
to the Bendix Corporation,
Defendant-Respondent.
____________________________
DAVID HARVEY and SHARON
HARVEY,
Plaintiffs-Appellants,
v.
HONEYWELL INTERNATIONAL,
INC., f/k/a Allied Signal, Inc.,
as Successor in the Interest
to the Bendix Corporation,
Defendant-Respondent.
______________________________
ROGER WILLIAMS and SARAH
BEAUCHAMP-WILLIAMS,
Plaintiffs-Appellants,
v.
HONEYWELL INTERNATIONAL,
INC., f/k/a Allied Signal, Inc.,
as Successor in the Interest
to the Bendix Corporation,
Defendant-Respondent.
______________________________
LESLIE JAMES GARDNER,
Plaintiff-Appellant,
v.
HONEYWELL INTERNATIONAL,
INC., f/k/a Allied Signal, Inc.,
as Successor in the Interest
to the Bendix Corporation,
Defendant-Respondent.
______________________________
Argued January 23, 2019 – Decided March 5, 2019
Before Judges Hoffman, Suter and Firko.
A-4989-16T1
2
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Docket Nos. L-4286-16,
L-6318-15, L-2314-16 and L-6817-16.
Daniel J. Woodard argued the cause for appellants
Raymond and Sheila Mary Rebbeck in A-4989-16,
David and Sharon Harvey in A-4990-16, and Roger
Williams and Sarah Beauchamp-Williams in A-4991-
16 (Szaferman, Lakind, Blumstein, Blader, PC, and
Brendan J. Tully (Phillips & Paolicelli) of the New
York bar, admitted pro hac vice, attorneys; Robert E.
Lytle, on the briefs).
Daniel J. Woodard argued the cause for appellant Leslie
James Gardner in A-3204-17 (Phillips & Paolicelli,
LLP, attorneys; Daniel J. Woodard, on the briefs).
John C. Garde argued the cause for respondents
(McCarter & English, LLP, and Gibbons PC, attorneys;
John C. Garde and Ethan D. Stein, of counsel; Jean P.
Patterson and Elizabeth K. Monahan, on the brief).
PER CURIAM
In this appeal, we address the dismissal of the asbestos-related product
liability claims of now-deceased residents of the United Kingdom (U.K.),
plaintiffs 1 Raymond Rebbeck, David Harvey, Roger Williams, and Leslie James
Gardner, against defendant Honeywell International, Inc. (Honeywell) on the
1
The spouses of Rebbeck, Harvey, and Williams also sue per quod. We
previously consolidated the Rebbeck, Harvey, and Williams cases for purposes
of this opinion. Since the Gardner appeal was heard back-to-back on the same
calendar, we consolidate it for purposes of this opinion as well.
A-4989-16T1
3
ground of forum non conveniens. After careful review, we affirm the Law
Division orders of dismissal in each case, but remand for the entry of a modified
order in the Gardner case to mirror the dismissal orders in the other cases.
The central facts are not in dispute. Plaintiffs were lifetime residents of
the U.K., where they worked as automobile mechanics. Part of their jobs
entailed installing replacement brakes – plaintiffs contend they predominately
installed Bendix Corporation brakes, which at the time contained asbestos.
Plaintiffs claim that the asbestos dust they inhaled from those br akes caused
them to develop mesothelioma.
Between October 2015 and November 2016, plaintiffs filed their
complaints against Honeywell as the successor in interest to Bendix
Corporation.2 Incorporated in Delaware, Honeywell maintains its principal
place of business in New Jersey. Plaintiffs' complaints alleged breach of express
and implied warranties, the marketing of an ultra-hazardous product, breach of
the duty to warn, and that Honeywell "willfully . . . with[e]ld information from
[p]laintiff[s] . . . and the general public."
2
Bendix merged into Allied Corporation, which merged into Allied Signal, Inc.,
which merged into Honeywell, Inc.
A-4989-16T1
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The parties conducted limited discovery, including the depositions of
plaintiffs before they died. Honeywell then filed motions to dismiss based on
the doctrine of forum non conveniens. The parties submitted voluminous factual
materials in support of and in opposition to the motions, including affidavits
from asbestos litigation experts in the U.K.: Patrick Gerard Walsh and Harry
David Glyn Steinberg, on behalf of plaintiffs; and Nicholas Aidin Pargeter on
behalf of Honeywell.
After hearing oral argument, Judge Jane B. Cantor issued an oral opinion
granting Honeywell's motion to dismiss in the Rebbeck, Harvey, and Williams
cases based on forum non conveniens. After hearing oral argument in the
Gardner case, Judge Ana C. Viscomi granted Honeywell's motion to dismiss,
also based on forum non conveniens. She issued a written opinion setting forth
the reasons for her decision. These appeals followed.
Forum non conveniens is an equitable doctrine, and its application is left
to the sound discretion of the trial judge. Kurzke v. Nissan Motor Corp. in
U.S.A., 164 N.J. 159, 165 (2000). Accordingly, we will not intervene absent a
clear abuse of discretion. Civic S. Factors Corp. v. Bonat, 65 N.J. 329, 332
(1974). The essence of forum non conveniens is that a court may decline
jurisdiction "whenever the ends of justice indicate a trial in the forum selected
A-4989-16T1
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by the plaintiff would be inappropriate." D'Agostino v. Johnson & Johnson,
Inc., 225 N.J. Super. 250, 259 (App. Div. 1988).
The defendant,
as the entity invoking the doctrine of forum non
conveniens, bears the burden of establishing that New
Jersey is not a convenient forum for this litigation.
[Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255
(1981).] However, less deference is accorded to [the]
plaintiffs' forum choice in this case than would
normally be accorded because of [the] plaintiffs'
residence in the U.K., not in this State. Id. at 255-56.
When the home forum has been chosen, it is reasonable
to assume that this choice is convenient. When the
plaintiff is foreign, however, this assumption is much
less reasonable. Because the central purpose of any
forum non conveniens inquiry is to ensure that the trial
is convenient, a foreign plaintiff's choice deserves less
deference. Ibid.[In re Vioxx Litig., 395 N.J. Super. 358, 364-65 (App.
Div. 2007).]
The first inquiry by the court on a dismissal application based on forum
non conveniens is whether there is an adequate alternative forum for the case
where the defendant is amenable to service of process and the subject matter of
the dispute may be litigated. Varo v. Owens-Illinois, Inc., 400 N.J. Super. 508,
519-20 (App. Div. 2008). Assuming a proper alternative forum, the court must
consider and weigh both public and private interest factors to determine whether
A-4989-16T1
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the plaintiff's choice of forum is appropriate for the matters in issue. Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947).
The public interest factors are as follows:
(1) the administrative difficulties which follow from
having litigation "pile up in congested centers" rather
than being handled at its origin, (2) the imposition of
jury duty on members of a community having no
relation to the litigation, (3) the local interest in the
subject matter such that affected members of the
community may wish to view the trial[,] and (4) the
local interest "in having localized controversies
decided at home."
[Aguerre v. Schering-Plough Corp., 393 N.J. Super.
459, 474 (App. Div. 2007) (quoting Gulf Oil Corp., 330
U.S. at 508-09).]
The private interest factors are:
(1) the relative ease of access to sources of proof, (2)
the availability of compulsory process for attendance of
unwilling witnesses and the cost of obtaining the
attendance of willing witnesses, (3) whether a view of
the premises is appropriate to the action[,] and (4) all
other practical problems that make trial of the case
"easy, expeditious and inexpensive," including the
enforceability of the ultimate judgment.
[Ibid.]
Judge Cantor stated in her oral opinion that the U.K. is a proper alternative
forum since plaintiffs were residents of the U.K., and they have the right to bring
suit against Honeywell in the U.K. She added that if a U.K. court should reject
A-4989-16T1
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plaintiffs' claims on the basis that the U.K. does not hear product liability cases
brought by claimants who used an allegedly defective product during the course
of their employment, then she would "invite these cases back." In her written
opinion, Judge Viscomi found the U.K. constitutes an adequate alternative
forum because the parties agree the U.K. processes workplace asbestos litigation
against claimants' employers.
Having found an adequate alternative forum, the judges went on to address
the public and private interests. Judge Cantor stressed the administrative
difficulties having the cases in New Jersey, and that the U.K "has a much greater
local interest in the international impact of products [imported] into [its]
country."
Applying the public interest factors, Judge Viscomi found:
1) . . . . Middlesex is the [Multicounty Litigation]
jurisdiction for asbestos cases. Presently pending are
over 400 cases with approximately 100 [attorneys]
representing living mesothelioma plaintiffs. Their
cases are expedited. Opening the docket to European
residents who have an adequate alternative forum
would delay the disposition of United States residents[']
claims, particularly those who have been diagnosed
with mesothelioma. 2) . . . . The Middlesex jurors
would be asked to sit on a case involving a foreign
plaintiff and a foreign defendant. The products at issue
were manufactured in Europe. 3) . . . . There would
be no local interest in the Middlesex jurors given that
both . . . plaintiff and . . . defendant's products are
A-4989-16T1
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foreign. The public interest would inure to the
plaintiff's community in the [U.K.] to observe the
proceeding there. And [4)] the local interest in having
localized controversies decided at home. This factor
inured to the localized interest in the [U.K.] and not
Middlesex County.
In addressing the private interest factors, Judge Viscomi found:
1) The relative ease of access to sources of proof rests
primarily, if not exclusively in the [U.K.] Plaintiff has
never been in New Jersey. Pursuing a product liability
claim would require extensive discovery process in the
[U.K.] as to alternate exposure and medical treatment.
2) . . . . All of the witnesses, with the exception of
perhaps some, if any, corporate witnesses are in the
[U.K.] Would they all come to the United States:
Would the court be able to secure their attendance? 3)
Whether a view of the premises is appropriate to the
action. . . . generally does not apply in asbestos
litigation. 4) . . . . This court would have to apply
[U.K.] law and instruct the jury as to [U.K.] law.
However, she declined to dismiss Gardner's complaint without prejudice,
instead entering a "with prejudice" dismissal.
Contrary to plaintiffs' arguments on appeal, we find no clear showing of
an abuse of discretion by either trial judge. There is no suggestion that the U.K.
would not provide a proper forum to adjudicate this matter, particularly via
claims against plaintiffs' former employers. Plaintiffs did not establish that their
claims cannot be filed against Honeywell in the U.K., conceding that such claims
are "technically possible," although with "practical impediments."
A-4989-16T1
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Honeywell's expert explained that bringing a suit such as plaintiffs'
against a former employer is more common than filing against the product
manufacturer, as
the level of damages which a plaintiff will receive is the
same whether the claim is brought in [employer
liability], public liability[,] or product liability. The
principle of compensatory damages [in the U.K.]
mandates that a claimant will be no better or worse off
depending upon which cause of action his claim is
based. Simply put[,] once a plaintiff in the [U.K.] has
been compensated by an employer, the plaintiff cannot
successfully make an additional claim against a
manufacturer[,] because the claimant would be seeking
damages for the same harm[,] and is not entitled to
double compensation.
Honeywell's expert went on to explain the additional costs and financial risks
that claimants such as plaintiffs would incur while suing a product manufacturer
such as Honeywell, as opposed to their employers. The additional cost and risk,
combined with the availability of essentially the same remedy against
employers, explain why it is more common and practical for U.K. claimants to
sue their employers as opposed to the product manufacturer; however, this
reality does not make the U.K. an inadequate alternative forum. As we
previously held:
[W]e have difficulty accepting the position of a group
of residents of the U.K. that perceived inadequacies in
the tort and damages laws and the rules for funding and
A-4989-16T1
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cost allocation of their countries of residence entitle
them to seek justice in New Jersey where the law and
fee arrangements are more favorable. By this
argument, plaintiffs essentially contend that the U.K.
provides an inadequate forum for the resolution of the
disputes of the English and Welsh living within its
borders. We do not regard the claimed inadequacies of
one country's system of funding suits and allocating
costs as a ticket to relief elsewhere, but rather, as a
subject for legislative or court reform, should such be
warranted.
[In re Vioxx Litig., 395 N.J. Super. at 373-74.]
We are further satisfied there was no clear showing of an abuse of
discretion regarding either judge's evaluation of the private and public interest
factors. The case is "localized" in the U.K., not New Jersey, as all of the alleged
claims arose from employment in the U.K., where most witnesses in the cases
reside. We also acknowledge Judge Viscomi's summary of the extent of
asbestos litigation currently pending in Middlesex County, and the potential
floodgates that could open if we begin importing cases from European countries
with adequate forums, and the effect that would have on our courts and the
claims of our residents. Since the public factors are sufficient to sustain a forum
non conveniens application, we need not consider the private factors. See id. at
379-80.
A-4989-16T1
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Lastly, we agree with Judge Cantor's view that this matter should return
to New Jersey if the U.K. should decline to accept jurisdiction over plaintiffs'
claims. Such a conditional order of dismissal without prejudice was correctly
entered in the Rebbeck, Harvey, and Williams cases. We conclude the order
dismissing the Gardner case should contain the same conditional language as
the orders entered in the other cases. 3
Affirmed but remanded for the entry of an amended order of dismissal in
the Gardner case. We do not retain jurisdiction.
3
At oral argument, Honeywell's counsel consented to this amendment to the
order dismissing the Gardner case.
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