SMITH v. FREESCALE SEMICONDUCTOR, 10C-07-273-JRJ (Del.Super. 12-13-2010)

C.D. No. 10C-07-273-JRJ.Superior Court of Delaware, New Castle County.Submitted: November 22, 2010.
Decided: December 13, 2010.

Upon Defendants’ Motion to Dismiss for Forum Non Conveniens:DENIED

Ian C. Bifferato, Esquire, David W. deBruin, Esquire, Kevin G. Collins, Esquire, John Z. Haupt, Esquire, Bifferato, LLC, Wilmington, Delaware, attorneys for plaintiffs.

Todd C. Schiltz, Esquire, Drinker, Biddle Reath, LLP, Wilmington, Delaware, 19801-1254, Jeffrey L. Moyer, Esquire, Stephen M. Ferguson, Esquire, Richards, Layton Finger, P.A., Wilmington, Delaware, attorneys for defendants.

OPINION
JURDEN, J.

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Before the Court is the Defendants’ Motion to Dismiss on grounds of Forum Non Conveniens.

INTRODUCTION
The plaintiffs allege that plaintiff Kevin Smith, while employed at a semiconductor plant in Arizona owned by defendant Freescale Semiconductor, Inc. (“Freescale”), was exposed to chemicals that caused birth defects to his son, Noah. Defendants argue this case has no connection to Delaware and they would face overwhelming and unwarranted burdens if forced to litigate in Delaware. There is no allegation in the complaint that any relevant conduct occurred in Delaware, and the only connection to Delaware is the defendants’ incorporation here. Plaintiffs counter by arguing that defendants have failed to prove overwhelming hardship under th Cryo-Maid factors.[1] After considering th Cryo-Maid factors, the Court does not find that the defendants will suffer overwhelming hardship if required to litigate in Delaware and, therefore, the Motion to Dismiss on grounds o Forum Non Conveniens is DENIED.

DISCUSSION
Dismissal of an action based on the doctrine of forum non conveniens lies within the sound discretion of the trial court.[2] Under Delaware law, plaintiffs’

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choice of forum is presumed proper.[3] This Court has noted a “clear preference in favor of a plaintiffs’ choice of forum, particularly where there are no previously filed actions pending elsewhere.”[4] This preference has been expressed in the form of a presumption that the plaintiffs’ choice of forum will be respected unless the defendant carries the heavy burden of establishing that Delaware is not an appropriate forum for the controversy.[5]
The fact that a plaintiff is not a resident of Delaware does not deprive him of the presumption that his choice of forum should be respected.[6] For defendants to overcome the presumption, they must show with particularity that litigating in Delaware will cause them overwhelming hardship and inconvenience.[7] Delaware courts assess hardship to a defendant by employing the si Cryo-Maid factors:

1) the relative ease of access to proof;
2) the availability of compulsory process for witnesses;
3) the possibility of viewing the premises;
4) whether the controversy is dependant upon the

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application of Delaware law, which the courts of this State more properly should decide than those of another;
5) the pendency or nonpendency of a similar action or actions in another jurisdiction; and
6) all other practical problems that would make the trial of the case easy, expeditious and inexpensive.

Analysis of the Cryo-Maid factors is not quantitative. The Court does not take a tally of the number factors that favor either part. These factors simply provide the framework for the analysis of hardship and inconvenience.[8] In conducting the analysis, the Court is not permitted to compare the plaintiff’s chosen forum with the proposed alternative forum and decide which forum is more appropriate.[9] Instead, when deciding a motion to dismiss o forum non conveniens, the Court must base its determination solely upon whether any or all of the Cryo-Maid factors establish that the defendant will suffer overwhelming hardship and inconvenience if required to litigate in Delaware.[10]

1. Relative Ease of Access to Proof.
Defendants argue that because all fact evidence relating to the core issue of the alleged exposure to chemicals, whether such exposure caused birth defects, and the nature and extent of injuries allegedly suffered by plaintiff is located “solely in Arizona,” this factor strongly favors dismissal. According to defendants, the

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“circumstances of Mr. Smith’s alleged exposures and the witnesses to such exposures, including those at prior employers and elsewhere, the evidence related to the `clean room’ operations used at the plants where he worked, and the medical diagnosis and treatment that plaintiffs have received is all in Arizona.”[11] Plaintiffs argue that even if this assertion is accurate, it is “not at all uncommon, and certainly not unduly burdensome for litigation to proceed in a venue other than that in which evidence such as employment records, medical records, and fact witnesses. . .reside.”[12] Plaintiffs also point out that defendants are headquartered throughout the United States, have their principle places of business in Pennsylvania (Air Products) and Texas (Freescale). According to plaintiffs, this litigation will “certainly implicate decisions, knowledge, and information disseminating from the corporate level, and documents stored at defendants’ corporate headquarters.”[13] Plaintiffs claim that “regardless of where this case is litigated, relevant information is stored throughout the country.”[14]

Defendants have not established with particularity what evidence would be unavailable or inaccessible to them if this case is litigated in Delaware. Other than general categories of information, they do not offer a list of documents they intend to obtain. Nor do they identify any potential witnesses by name, job title or areas

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of responsibility in the manufacturing plant. They do not indicate what witnesses could not be produced by plaintiffs in Delaware or why testimony of potentially unavailable witnesses could not be presented by deposition.[15] Regardless of where this case is tried, defendants’ lawyers and experts will probably have to travel, given that the defendants’ principle places of business are in Pennsylvania and Texas and the experts are located around the country. Defendants claim that because the plaintiffs are located in Arizona the bulk of their medical records and educational records are likely to be located in Arizona. Other than pointing out that the records are located in Arizona, the defendants fail to explain why it would not be relatively easy to access that proof in Delaware, particularly since much of it is presumably under the control or within the easy access of the plaintiffs. Thus, the Court disagrees with defendants that ease of access to proof strongly favors dismissal and finds that this factor does not weigh in favor of defendants.

2. Availability of Compulsory Process for Witnesses.
Defendants claim that the plaintiffs’ treating physicians and the minor plaintiffs’ teachers and development aides, in addition to witnesses knowledgeable about the plaintiffs’ family medical history, are likely located in Arizona. They further argue that, as to each core issue, the fact evidence and the compulsory

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process to secure it is located solely in Arizona. Defendants contend that several, if not most, of the relevant witnesses are no longer employed or otherwise under the defendants’ control, but they do not indicate where those witnesses reside or why litigating the case in Delaware would present an overwhelming hardship with respect to accessing the testimony of those witnesses. To justify dismissal under this Cryo-Maid factor, Delaware law requires the defendants to identify specifically the witnesses not subject to compulsory process.[16] Defendants fail to do so. Not only do defendants fail to specify by name any witness that is alleged to be beyond their reach and whose absence would adversely affect their defense, they fail to proffer the specific substance of their testimony.[17] Plaintiffs claim they can identify numerous witnesses who reside throughout the country who are not under the control of any party, and name five such witnesses in their opposition papers.[18] According to plaintiffs, litigation in any potential forum would suffer from the same difficulties in compelling process, and therefore, there would be no clear advantage or disadvantage to litigating in Delaware as opposed to another forum.[19] The Court agrees with plaintiffs that this factor does not weigh in favor of dismissal.

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3. View of the premises.
Defendants argue that this factor strongly favors dismissal or a stay because plaintiffs’ claims center on allegations of exposure to allegedly toxic substances during Mr. Smith’s employment in a clean room where “complex manufacturing processes are conducted using sophisticated equipment and state of the art ventilation and filtration systems.”[20] The Court is not persuaded by this argument. This Court is a court of general jurisdiction that handles a wide array of cases, including complex product liability and personal injury actions, which often involve complicated equipment and complex manufacturing processes. This Court has handled many cases where liability hinges on the layout or precise location of certain equipment or other objects, and in most of those cases, the juries did not view the premises in person. Rather, in this technological age we live in, jurors are often provided with impressive computer animations, scaled models, videotapes and other technological presentations that provide them with the information they require to find the facts. Moreover, even if this were not true, given the representations during oral argument as to the constantly changing processes employed in the manufacturing facilities at issue, it seems unlikely that the defendants’ premises today is the same as it was during the relevant time period,

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2003-2005.[21] In any event, the Court is more than satisfied that, to the extent a jury or the Court needs to view the clean room or the manufacturing processes, the ventilation and filtration systems, or any other aspect of the manufacturing facilities, it can do so through computer animation, photographs, or video footage.[22] Thus, this factor does not weigh in favor of dismissal.

4. Applicability of Delaware Law.
Defendants argue that Arizona law applies to the plaintiffs’ claims. At this juncture the Court is unaware of a conflict between Arizona and Delaware law, and until a conflict is established, the Court has no reason to engage in a conflict of law analysis. Assuming, arguendo, there is a conflict and Arizona law would apply, this Court is highly capable and experienced in applying law from other jurisdictions and this factor does not support a determination of overwhelming hardship.[23]

5. Pendency or Non-Pendency of Other Actions.
This Court has recognized that the absence of a pending action elsewhere is “an important if not controlling consideration” in th forum non conveniens

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analysis. “[I]f not dispositive, this fact weighs heavily
against dismissal.[24] There is no action pending elsewhere and thus this factor weighs heavily against dismissal.

6. Other Practical Considerations.
Defendants argue that Arizona is a “far superior alternative forum” and that conceivably responsible parties may not be Delaware corporations or residents, and thus, not subject to jurisdiction in Delaware.[25] Even if true, these assertions do not support dismissal because defendants have clearly failed to state with the requisite particularity why litigating in Delaware would cause them overwhelming hardship and inconvenience. Accordingly, the Motion to Dismiss is DENIED.

IT IS SO ORDERED.

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