Preview
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023
NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
ALL COUNTIES WITHIN THE CITY OF NEW YORK
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IN RE: NEW YORK CITY ASBESTOS LITIGATION
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DAN ALBASRY, as Trustee of the Estate of NEWAL
AL SAAD, and FIRAS MOHAMMAD,
Index No. 190002/2023
Plaintiffs,
Assigned Judge:
-against- Hon. Adam Silvera, J.S.C.
BARRETTS MINERALS INC., et al.,
Defendants.
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REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF
PORT JERVIS LABORATORIES, INC. f/k/a KOLMAR
LABORATORIES, INC.’S MOTION TO DISMISS FOR FORUM
NON CONVENIENS
Clyde & Co US LLP
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174
Attorneys for Defendant Port Jervis
Laboratories, Inc.
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TABLE OF CONTENTS
Page
PLAINTIFFS’ OPPOSITION..........................................................................................................1
ARGUMENT IN REPLY ................................................................................................................1
I. THERE ARE NO FACTS WHICH EVEN REMOTELY
DEMONSTRATE A “SUFFICIENT NEXUS” TO NEW YORK..........................1
A. Plaintiffs’ Own Affidavits Further Demonstrate Why Dismissal
Pursuant to CPLR 327(a) is Appropriate. ....................................................1
B. Generalized, Non-Case-Specific Conduct by Defendants is Not
Sufficient to Support Jurisdiction in New York. .........................................4
C. Claims that it Will Be “Easy” to Obtain Evidence and Witnesses
from Canada are Difficult to Countenance. .................................................6
D. Merely Because Plaintiffs Prefer New York, Such Does Not
Demonstrate that Canada is an Unsuitable Forum. ....................................10
II. APPLICABLE CASE LAW MILITATES STRONGLY IN FAVOR OF
DISMISSAL. .........................................................................................................11
CONCLUSION ..............................................................................................................................14
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TABLE OF AUTHORITIES
Page
Cases
Alberta & Orient Glycol Co. Ltd. v. Factory Mut. Ins. Co.,
No. 603150/05, 2007 WL 6881693 (Sup. Ct. Apr. 24, 2007) aff’d, 49 A.D.3d 276
(1st Dep’t 2008) ...................................................................................................................8
Alston v. Divine Bros. Co.,
195 A.D.3d 563 (1st Dep’t 2021) ..................................................................................8, 12
Christina Thomas v. Avon Products, Inc.,
Index No. 190126/2020 (Sup. Ct., N.Y. Cty.) .....................................................................7
English v. Avon Prods., Inc.,
194 A.D.3d 480 (1st Dep’t 2021) ......................................................................................12
Globalvest Mgmt. Co. L.P. v. Citibank, N.A.,
7 Misc.3d 1023(A) (Sup. Ct., N.Y. Cty. 2005) ..................................................................12
In re New York City Asbestos Litig. (“Ward”),
No. 190091/16, 2018 WL 3575063 (Sup. Ct., N.Y. Cty. Jul. 25, 2018) .......................5, 13
Jackam v. Nature’s Bounty, Inc.,
70 A.D.3d 1000 (2d Dep’t 2010) ...................................................................................9, 12
Lois Prokocimer v. Kolmar Laboratories, Inc.,
Index No. 190019/2019 (Sup Ct., N.Y. Cty. May 3, 2019) ............................................. 5-6
Martin v. Mieth,
35 N.Y.2d 414 (1974) ..........................................................................................................3
Nat’l Bank & Trust Co. of N. Am. v. Banco De Vizcaya,
72 N.Y.2d 1005 (1988) ................................................................................................ 11-12
Patron v. Patron,
67 Misc.2d 639 (Sup. Ct., N.Y. Cty. 1971) .........................................................................8
People v. McCartney,
38 N.Y.2d 618 (1976) ..........................................................................................................8
Rodionov v. Redfern,
173 A.D.3d 410 (1st Dep’t 2019) ..............................................................................3, 9, 12
Shin-Etsu Chem. Co., Ltd. v. ICICI Bank Ltd.,
9 A.D.3d 171 (1st Dep’t 2004) ..........................................................................................10
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TABLE OF AUTHORITIES
Page
Cases
Silver v. Great Am. Ins. Co.,
29 N.Y.2d 356 (1972) ..........................................................................................................3
Slattery v. Colgate-Palmolive Co.,
No. 190090/16, 2018 WL 3241906 (Sup. Ct., N.Y. Cty. Jul. 2, 2018) ..................... 4-5, 13
Other Authorities
C.P.L.R. 327............................................................................................................................................ 1, 3
W.A. Bogart, “Guardian of Civil Rights…Medieval Relic”: The Civil Jury In Canada,
62-SPG Law & Contemp. Probs. 305, 306, 312 (1999) ........................................................ 11
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Port Jervis Laboratories, Inc. f/k/a Kolmar Laboratories, Inc. (“Port Jervis”) respectfully
submits this Reply Memorandum of Law in support of its motion to dismiss, pursuant to
C.P.L.R. 327, based on the doctrine of forum non conveniens.
PLAINTIFFS’ OPPOSITION
Plaintiffs have interposed opposition by way of Affirmation and Memorandum of Law
dated July 10, 2023. Therein, Plaintiffs set forth the following arguments in opposition: (1) there
are sufficient connections to New York to warrant retaining jurisdiction;1 and (2) applicable case
law favors denial of the motion to dismiss.2
It is respectfully submitted that Plaintiffs’ position is supported by neither the record nor
applicable law. Among other deficiencies in Plaintiffs’ argument, three (3) brief visits to New
York over the course of a lifetime are clearly insufficient to sustain jurisdiction. As such, it is
respectfully submitted that Plaintiffs’ forum shopping should not be rewarded, and dismissal is
very clearly appropriate.
ARGUMENT IN REPLY
I. THERE ARE NO FACTS WHICH EVEN REMOTELY DEMONSTRATE A
“SUFFICIENT NEXUS” TO NEW YORK.
A. Plaintiffs’ Own Affidavits Further Demonstrate Why Dismissal
Pursuant to CPLR 327(a) is Appropriate.
Initially, it should be recalled why, exactly, the instant motion was interposed. According
to the complaint, Ms. Al Saad was a resident of Ontario, Canada. Her surviving spouse is also a
resident of Ontario, Canada. Her estate is being probated in Ontario through the Ontario Superior
Court of Justice. The trustee of her estate is a resident of Ontario. Moreover, while it is alleged
1
See Plaintiffs’ Memorandum of Law in Opposition to Port Jervis’ Motion to Dismiss Pursuant to C.P.L.R. 327, dated
July 10, 2023 (“Pls’ Opp.”), at 3-33.
2
Id. at 34-57.
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that some of her purported use of talc products occurred in New York, it appears that the majority
occurred elsewhere: namely, Canada. Equally important for the purposes of this motion, it appears
that any and all witnesses, medical records, employment records, etc. are located in Canada. As
such, essentially all critical evidence in this case is beyond the reach of this Court, and defendants
will have no ability to obtain same.
Nevertheless, Plaintiffs contend that there are sufficient connections to New York so as to
warrant retaining jurisdiction. However, even cursory review of Plaintiffs’ opposition reveals very
little in terms of demonstrable evidence to support their position.
Plaintiffs point first to what is styled “testimony” of Ms. Al Saad’s daughter, Dinan
Mohammad.3 Yet there is no testimony in connection with this matter. Rather, Ms. Mohammad
has submitted a conclusory and self-serving affidavit which merely claims that Ms. Al Saad
purchased talc products in New York on two brief occasions (a one-week visit in 2015, and a
wedding in 2019) – over the course of her entire life.4
Plaintiffs also point to the “testimony” (again, an affidavit) of Ms. Al Saad’s son, Dan
Albasry. Yet this affidavit merely states that Ms. Al Saad used a talc product in New York on one
occasion throughout her life: the above-mentioned 2019 wedding.5 As such, it offers even less
than the affidavit of Ms. Mohammad.
Finally, Plaintiffs cite to an affidavit executed by Maytham Ibrahim, Ms. Al Saad’s brother.
But the most Mr. Ibrahim can say is that Ms. Al Saad purchased unknown talc products in New
York on one additional occasion: a ten-day trip in 1996.6
3
Id., at 11-13.
4
Id.
5
Id. at 13-14.
6
Id. at 14-15.
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In sum, taking the entirety of Plaintiffs’ affidavits together, the most that is demonstrated
is that Ms. Al Saad used or purchased talc products in New York on three occasions over the
course of her entire life. Additionally, closer scrutiny of the above affidavits reveals that all three
affiants – presumably, the primary fact witnesses in this case – reside in Canada. As such, they
(along with all other case-specific witnesses and evidence) are well beyond the subpoena power
of New York courts. If anything, these affidavits demonstrate exactly why New York is a palpably
improper forum in which to adjudicate this case. Certainly, they do nothing to demonstrate a
“substantial nexus” with New York. And, as the Court of Appeals has noted, without this showing
New York courts should not accept jurisdiction. See Silver v. Great Am. Ins. Co., 29 N.Y.2d 356,
361 (1972). Rather, in absence of a substantial nexus with New York, this Court should dismiss
the action under the doctrine of forum non conveniens. See C.P.L.R. 327(a); Martin v. Mieth, 35
N.Y.2d 414, 418 (1974) (holding that “[s]ince the touchstone of forum non conveniens is
flexibility, our courts need not entertain causes of action lacking a substantial nexus with New
York.”) (citations omitted).
Of note, even if Ms. Al Saad did on occasion use talc powder products within the State of
New York, such as on vacations, business meetings, or some other sporadic manner, such sporadic
use will not create a nexus with New York such as to defeat a form non conveniens motion. See
Rodionov v. Redfern, 173 A.D.3d 410, 410 (1st Dep’t 2019) (granting defendant’s forum non
conveniens motion where the bulk of the transactions causing plaintiff’s injury occurred in Cyprus
rather than New York).
In sum, Plaintiffs’ own evidentiary offerings only serve to further underscore why
dismissal pursuant to C.P.L.R. 327(a) is proper.
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B. Generalized, Non-Case-Specific Conduct by Defendants is Not
Sufficient to Support Jurisdiction in New York.
No doubt mindful of the above, the remainder of Plaintiffs’ attempt to demonstrate any sort
of nexus is confined to claims of generalized, non-case-specific New York-based conduct by the
Defendants. For example, Plaintiffs argue that Port Jervis assisted in the production of Johnson’s
Baby Powder and Shower-to-Shower for several years by blending a portion of the products in
New York.7 Plaintiffs also variously argue that Port Jervis had a sales office in New York;8 that
the “cosmetic industry” as a whole has connections to New York;9 that Defendants attended CTFA
trade shows in New York;10 that Johnson & Johnson disputed tests of talc products in New York;11
and that other Defendants also have offices in New York and/or are New York-based.12 Yet case
law finds that none of these facts in any way supports maintaining jurisdiction in New York.
In particular, it goes without saying that non-case-specific conduct by a defendant – i.e.,
conducting business in New York, maintaining offices in New York, etc. – is not sufficient to
demonstrate a “substantial nexus.” Indeed, if it were, then jurisdiction would always be proper no
matter how attenuated a plaintiff’s contacts were with this state. Decisions by this very Court
reveal exactly the opposite.
For example, in Slattery v. Colgate-Palmolive Co., No. 190090/16, 2018 WL 3241906, at
*1 (Sup. Ct., N.Y. Cty. Jul. 2, 2018) (see McCaffrey Aff. Ex. E), Plaintiff Rebecca Slattery
allegedly developed mesothelioma due to her exposure to asbestos purportedly contained in
7
Pls’ Opp. at 15-18.
8
Id. at 18-19.
9
Id. at 19-25.
10
Id. at 20-24.
11
Id. at 25-26.
12
Id. at 31-32.
4
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defendant Colgate-Palmolive’s Cashmere Bouquet Talcum powder. She was exposed to that
product in Connecticut, where she resided for upwards of 40 years. Id. After she ceased using the
product, she moved to Virginia and continued to reside there at all relevant times. She was
diagnosed with mesothelioma in Virginia, and her medical treatment also occurred there. Under
these facts, this Court granted Colgate-Palmolive’s motion to dismiss, noting that:
This court is of the opinion that in balancing the interests and convenience of the
parties and the court’s this action could better be adjudicated in either the courts of
the State of Connecticut or the State of Virginia. The only nexus this action has
with the State of New York is that the corporate defendant has its principal place
of business in New York. The plaintiffs are residents of the state of Virginia and
Plaintiff Rebecca Slattery was exposed to the defendant’s product while she resided
in the state of Connecticut. The medical treatment, her medical doctors and all her
witnesses are in the State of Virginia. Under these facts the action should be
dismissed without prejudice on the grounds of forum non conveniens.
Id. at *3.
Similarly, in In re New York City Asbestos Litig. (“Ward”), No. 190091/16, 2018 WL
3575063, at *3 (Sup. Ct., N.Y. Cty. Jul. 25, 2018) (see McCaffrey Aff., Ex. F), this Court granted
dismissal based on forum non conveniens because:
…in balancing the interests and convenience of the parties and the court’s, this
action could better be adjudicated in the courts of the State of Texas. The only nexus
this action has with the State of New York is that the corporate defendant has its
principal place of business in New York. The plaintiff is a resident of the State of
Texas and Plaintiff Sharon Ward was exposed to the defendant’s product while she
resided in the State of Texas. The medical treatment, her medical doctors and
almost all of her witnesses are in the State of Texas. Under these facts the action
should be dismissed without prejudice on the grounds of forum non conveniens.
Id. at *3.
Additionally, this Court has already reviewed the exact same generalized “defendant-
conduct” evidence proffered by Plaintiffs herein and found it to be inadequate to serve as
“substantial events” sufficient to support jurisdiction. Specifically, the plaintiffs in Prokocimer
sought to rely on the same evidence – namely, CTFA membership and trade show attendance – in
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an attempt to secure New York County venue for plaintiffs who were Florida residents. See
Prokocimer, supra, at *1-2. However, this Court rightly rejected such evidence, noting that:
Kolmar’s claimed participation in Cosmetic Toiletries and Fragrance Association
meetings in New York County have not been shown to be a substantial part of the
events giving rise to plaintiff’s claim…
See Lois Prokocimer v. Kolmar Laboratories, Inc., Index No. 190019/2019 (Sup Ct., N.Y. Cty.
May 3, 2019), at *2.
So too in the case at bar. As Plaintiffs herein have offered nothing beyond CTFA meetings,
trade show attendance, and non-case-specific conduct by various Defendants, there is clearly
nothing which even remotely approaches a “substantial nexus” to support jurisdiction in New
York. The events cited by Plaintiffs herein are neither substantial nor, in truth, related other than
tangentially to any claims herein.
C. Claims that it Will Be “Easy” to Obtain Evidence and Witnesses from
Canada are Difficult to Countenance.
Perhaps the most curious argument advanced by Plaintiffs is the claim that Defendants will
“easily” be able to obtain any and all relevant evidence from Canada.13 As Plaintiffs put it, the
medical records they have thus far made available indicate Plaintiff has “no significant past
medical history” worth looking into, and that “all relevant” discovery has already been produced
(even though the case was just recently filed and no depositions have taken place).14
Respectfully, while Plaintiffs are already declaring discovery to be largely complete, it
goes without saying that the opinions of defense counsel on this subject may well differ from those
of Plaintiffs’ counsel. First, Plaintiffs appear to believe that medical records – and specifically
medical records they select – constitute the only “relevant” evidence. This entirely ignores the fact
13
Pls’ Opp. at 27-29.
14
Id. at 28-29.
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that discovery in asbestos cases regularly includes employment records, military records, medical
records beyond those initially disclosed, and non-party witnesses not hand-picked by the plaintiff.
Second, as this Court is well aware, even obtaining agreed-upon/non-contested medical
records and pathology from another U.S. jurisdiction – much less Canada – is a time-consuming
and difficult process. By way of example, in Christina Thomas v. Avon Products, Inc., Index
No. 190126/2020 (Sup. Ct., N.Y. Cty.), Plaintiffs also claimed to have disclosed all “relevant”
medical records. It was later discovered that Plaintiffs had not provided several blocks of
pathology which were in the possession of Brigham & Women’s Hospital in Massachusetts. This
affirmant was therefore compelled to file an application with this Court on February 22, 2023,
seeking an out-of-state commission for a subpoena to obtain the pathology. See Christina Thomas
v. Avon Products, Inc., Index No. 190126/2020 (Sup. Ct., N.Y. Cty.), NYSCEF Doc. Nos. 77-86.
Once that application was granted, this affirmant was then required to file a motion in Superior
Court, Suffolk County, MA, seeking to domesticate the subpoena. See the accompanying Reply
Affirmation of Kevin C. McCaffrey, dated September 14, 2023 (“McCaffrey Reply Aff.”), Ex. A.
Once that motion was granted, the subpoena was finally served on Brigham & Women’s Hospital.
Yet still the hospital refused to release the pathology. This office was therefore compelled to file
a motion seeking contempt against Brigham & Women’s Hospital. See McCaffrey Reply Aff.,
Ex. B. As of today’s date, while that motion has been served, incredibly the hospital still has not
provided the pathology.
In sum, even obtaining medical records from another state can be (and typically is) a time-
consuming and expensive process. It can only be imagined how much more time-consuming and
expensive the process will be when another country is involved. This is why the most prejudicial
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aspect of maintaining this action in New York is the obvious hardship in terms of accessing
witnesses and evidence.
As noted, it appears that any and all witnesses in this case are located in Canada, including
Ms. Al Saad’s spouse, her extended family, and her co-workers. Any and all medical records,
including pathology, are located in Canada. It also appears that her employment was either entirely
or primarily in Canada. In sum, essentially all critical evidence in this case is beyond the reach of
this Court, and Defendants will have no ability to obtain any evidence that Plaintiffs do not agree
is relevant. These obvious hardships, beyond any other considerations, weight heavily in favor of
dismissal.
In particular, it is well established that New York courts cannot issue subpoenas on those
witnesses outside of its jurisdiction. See People v. McCartney, 38 N.Y.2d 618, 621 (1976); Patron
v. Patron, 67 Misc.2d 639, 640 (Sup. Ct., N.Y. Cty. 1971) (noting that witnesses outside of the
jurisdiction of the court are beyond the subpoena power of that court). New York courts have
consistently recognized that “[t]o fix the place of trial at a point where litigants cannot compel
personal attendance [of witnesses] and may be forced to try their cases on deposition, is to create
a condition not satisfactory to court, jury or most litigants.’” Alberta & Orient Glycol Co. Ltd. v.
Factory Mut. Ins. Co., No. 603150/05, 2007 WL 6881693, at *28 (Sup. Ct. Apr. 24, 2007) aff’d,
49 A.D.3d 276 (1st Dep’t 2008) (quoting VictoriaTea.com Inc. v. Cott Beverages, Can., 239
F. Supp.2d 377, 384 (S.D.N.Y. 2003)).
Moreover, where the identified witnesses are located outside of New York, this factor
supports dismissal on the basis of forum non conveniens. See Alston v. Divine Bros. Co., 195
A.D.3d 563, 563 (1st Dep’t 2021) (granting New York defendant’s forum non conveniens motion
where the situs of the accident, identified witnesses, and plaintiff all resided in Ohio, not New
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York); Rodionov, 173 A.D.3d at 410 (granting defendant’s forum non conveniens motion, in part,
where the bulk of the litigants and witnesses were located in Cyprus, rather than New York);
Jackam v. Nature’s Bounty, Inc., 70 A.D.3d 1000, 1001-02 (2d Dep’t 2010) (granting New York
defendants’ forum non conveniens motion, in part, where plaintiff received all medical treatment
in Georgia, all of plaintiff’s treating physicians were in Georgia and fact witnesses were located
in Georgia).
In the instant matter, Plaintiffs are residents of Ontario, Canada. See McCaffrey Aff., Ex. A
at 7. Ms. Al Saad was a resident of Ontario, Canada at the time of her death and previously lived
and worked there. Id. Ms. Al Saad’s personal affects, correspondences, financial records, and
employment records are all likely within Canada, within the Trusteeship established by the Ontario
Court of Justice to manage Ms. Al Saad’s estate and/or with various Canadian governmental
agencies. Ms. Al Saad’s treating physicians, medical records, and pathology are all similarly
located in Ontario, Canada. See generally McCaffrey Aff., Ex. C at 2; Ex. D at 1. Because
Plaintiffs are residents of Canada, it stands to reason that any fact witnesses which might be called
by Plaintiffs or Defendants at trial or to appear in depositions are similarly located in Canada since
there is no indication that Ms. Al Saad ever lived or worked in the United States. See generally,
McCaffrey Aff. Ex. A. In sum, Plaintiffs’ allegations do not suggest that any of their witnesses in
this case are in New York, or even the United States. Id.
In sum, because essentially all case-specific documents and witnesses are located in
Canada, they are very clearly outside of the subpoena power of the courts of New York. This
substantial burden, and obvious prejudice, should not be permitted.
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D. Merely Because Plaintiffs Prefer New York, Such Does Not
Demonstrate that Canada is an Unsuitable Forum.
Plaintiffs also appear to advance the argument that the Canadian legal system is so
intrinsically flawed and/or sensationally unfair that prosecuting this case in their home forum
would be, at best, a farcical endeavor.15 As Plaintiffs claim, procedural rules are “constrained” as
regards products liability, it can be “risky and expensive” to sue due to a loser-pay rule, and as
such it is “common” to forum shop in U.S. courts.16 Plaintiffs even trot out a Canadian plaintiff’s
attorney who complains about the risk and expense involved in such litigation, and notes that the
right to a jury trial in Canada is technically not absolute – although, tellingly, no specifics are
provided on this point.17 But he finally gets around to the real complaint Plaintiffs evidently have
herein: namely, the fact that there are caps on non-pecuniary damages in Canada.18
In sum, reading between the lines, the most that Plaintiffs can offer on this issue is that
New York is more appealing because it is less “risky and expensive” (for Plaintiffs) and offers a
higher likelihood of a jackpot verdict. But clearly these concerns are not among those which
support retaining jurisdiction in this state. It goes without saying that Ontario, Canada is readily
available and perfectly suited as a forum to litigate this dispute. “Ordinarily, [the] requirement [of
an adequate alternative forum] will be satisfied when the defendant is ‘amenable to process’ in the
other jurisdiction,” but “dismissal would not be appropriate where the alternative forum does not
permit litigation of the subject matter of the dispute.” Shin-Etsu Chem. Co., Ltd. v. ICICI Bank
Ltd., 9 A.D.3d 171, 178-79 (1st Dep’t 2004) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235,
254, n.22 (1981)).
15
Pls’ Opp. at 29-31.
16
Id.
17
Id.
18
Id. at 30.
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Here, it is uncontested that Canada is an adequate alternate forum, notwithstanding
complaints of “risk and expense” or lower sustainable verdicts. There is no indication that the
courts in Ontario would not entertain a tort action between the Plaintiffs and the Defendants named
in the instant matter. There is no indication that Plaintiffs would be prejudiced by litigating this
suit in Canada. And notwithstanding Plaintiffs’ claims that the right to a jury trial is not absolute,
civil litigants in Canada are entitled to a jury trial and Ontario, in fact, is one of the Canadian
provinces in which civil jury trials occur the most frequently. See W.A. Bogart, “Guardian of
Civil Rights…Medieval Relic”: The Civil Jury In Canada, 62-SPG Law & Contemp. Probs. 305,
306, 312 (1999). As such, Plaintiffs’ complaints regarding the Canadian legal system are hardly
compelling.
II. APPLICABLE CASE LAW MILITATES STRONGLY IN FAVOR OF
DISMISSAL.
The remainder of Plaintiffs’ opposition is essentially a regurgitation of inapposite case
law.19 In fact, Plaintiffs provide more than fifteen (15) pages of citations and pull-quotes.20 Yet
what is missing is what is most telling: Plaintiffs provide not one single case in which a total of
three (3) visits to New York was somehow deemed sufficient to sustain jurisdiction in the context
of an asbestos-related lawsuit. No doubt this is because no such case exists, and truly applicable
case law does not even remotely approach endorsing such a view, whether as regards asbestos
litigation or litigation in general.
It should here be recalled that while Ms. Al Saad visited New York on three (3) occasions,
the overwhelming majority of her purported use of talc products occurred in Canada. New York
courts look at the material events relating to a plaintiff’s complaint and where these events
19
Pls’ Opp. at 41-69.
20
Id.
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occurred. For example, in Nat’l Bank & Trust Co. of N. Am., the Court of Appeals affirmed a
forum non conveniens dismissal when the contract at issue in that lawsuit was entered into in Spain,
and the entities, persons and events were predominantly situated in Spain. Nat’l Bank & Trust Co.
of N. Am. v. Banco De Vizcaya, 72 N.Y.2d 1005 (1988); see also Alston, 195 A.D.3d at 563
(granting New York defendant’s forum non conveniens motion where the situs of the accident,
identified witnesses, and plaintiff all resided in Ohio); Rodionov, 173 A.D.3d at 410 (granting
defendant’s forum non conveniens motion where a portion of plaintiff’s injury, litigants, and
witnesses were located in Cyprus, rather than New York); Jackam, 70 A.D.3d at 1000-02 (granting
New York defendants’ forum non conveniens motion where plaintiff, a Georgia resident,
purchased and was injured by defendant’s product in Georgia and received medical treatment in
Georgia.); Globalvest Mgmt. Co. L.P. v. Citibank, N.A., 7 Misc.3d 1023(A) (Sup. Ct., N.Y. Cty.
2005) (finding Brazil to be the appropriate forum because virtually all of the events relating to the
complaint, including the events leading to the commencement of the lawsuit and conduct of the
lawsuit occurred in Brazil and not New York).
Of note – and particularly relevant to asbestos-related claims – if a plaintiff’s injury was
ongoing over a period of years but was sporadic or infrequent within the plaintiff’s chosen forum,
this will not create a suitable nexus such as to connect the plaintiff’s claims the venue to defeat a
forum non conveniens motion. See Rodionov, 173 A.D.3d at 410 (granting defendant’s forum non
conveniens motion where the bulk of the transactions causing plaintiff’s injury occurred in Cyprus,
rather than New York); English v. Avon Prods., Inc., 194 A.D.3d 480, 481 (1st Dep’t 2021)
(denying defendant’s forum non conveniens motion where plaintiff used and was injured by
defendant’s products hundreds of times within New York) (emphasis added).
12
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Having reviewed Plaintiffs’ opposition, it is now abundantly clear that Ms. Al Saad never
lived or worked in New York or the United States. And, even if occasional use occurred in New
York, such sporadic or transient use will not create a nexus sufficient to sustain jurisdiction. Along
these lines, it is perhaps worth recalling this Court’s reasoning in Slattery and Ward. There, as
here, plaintiffs were non-residents who claimed exposure to talc products used almost entirely
outside of New York. There, as here, all medical treatment occurred outside of New York. And
there, as here, plaintiffs claimed that defendants’ in-state general business activity, or corporate
offices, supported New York jurisdiction. This Court disagreed:
The only nexus this action has with the State of New York is that the corporate
defendant has its principal place of business in New York. The plaintiffs are
residents of the state of Virginia and Plaintiff Rebecca Slattery was exposed to the
defendant’s product while she resided in the state of Connecticut. The medical
treatment, her medical doctors and all her witnesses are in the State of Virginia.
Under these facts the action should be dismissed without prejudice on the grounds
of forum non conveniens.
Slattery v. Colgate-Palmolive Co., No. 190090/16, 2018 WL 3241906, at *3 (Sup. Ct., N.Y. Cty.
Jul. 7, 2018) (citations omitted).
The only nexus this action has with the State of New York is that the corporate
defendant has its principal place of business in New York. The plaintiff is a resident
of the State of Texas and Plaintiff Sharon Ward was exposed to the defendant’s
product while she resided in the State of Texas. The medical treatment, her medical
doctors and almost all of her witnesses are in the State of Texas. Under these facts
the action should be dismissed without prejudice on the grounds of forum non
conveniens.
In re New York City Asbestos Litig. (“Ward”), No. 190091/16, 2018 WL 3575063, at *3 (Sup. Ct.,
N.Y. Cty. Jul. 25, 2018).
So too in the case at bar. Plaintiffs herein would have this Court ignore its own prior
decisions, as well as case law generally, and permit jurisdiction to rest on the most tenuous of
circumstances: namely, three (3) visits to New York which involved purchasing or using products
which may (or may not) have contained asbestos. There is no precedent for an exercise of
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jurisdiction based on such facts, and the Court should not accept Plaintiffs’ invitation to become a
vanguard on this particular area of law.
CONCLUSION
In sum, based on the above, and the record before the Court in toto, it is respectfully
submitted that the instant motion should be granted in its entirety.
WHEREFORE, Defendant Port Jervis Laboratories, Inc., f/k/a Port Jervis Laboratories,
Inc. respectfully requests that this Court issue an order: (1) granting the instant motion to dismiss
based on forum non conveniens; and (2) granting such other and further relief as may be deemed
just, proper, and equitable.
Dated: New York, New York
September 14, 2023
Respectfully submitted,
CLYDE & CO US LLP
By: /s/ Kevin C. McCaffrey
Kevin C. McCaffrey
The Chrysler Building
405 Lexington Avenue, 16th Floor
New York, New York 10174
Phone: (212) 710-3900
Fax: (212) 710-3950
Email: kevin.mccaffrey@clydeco.us
Attorneys for Defendant Port Jervis
Laboratories, Inc.
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WORD COUNT CERTIFICATION
Kevin C. McCaffrey hereby certifies, pursuant to 22 NYCRR 202.8-b(c) that the REPLY
MEMORANDUM OF LAW IN FURTHER SUPPORT OF PORT JERVIS
LABORATORIES, INC. f/k/a KOLMAR LABORATORIES, INC.’S MOTION TO
DISMISS FOR FORUM NON CONVENIENS contains 4,300 words, not including the caption
and signature block and, further, the document complies with the word count limit in 22 NYCRR
202.8-b(a)(i).
Dated: New York, New York
September 14, 2023
/s/ Kevin C. McCaffrey
KEVIN C. MCCAFFREY
1
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Preview
FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 SUPREME COURT OF THE STATE OF NEW YORK ALL COUNTIES WITHIN THE CITY OF NEW YORK -----------------------------------------------------------------------x IN RE: NEW YORK CITY ASBESTOS LITIGATION -----------------------------------------------------------------------x DAN ALBASRY, as Trustee of the Estate of NEWAL AL SAAD, and FIRAS MOHAMMAD, Index No. 190002/2023 Plaintiffs, Assigned Judge: -against- Hon. Adam Silvera, J.S.C. BARRETTS MINERALS INC., et al., Defendants. -----------------------------------------------------------------------x REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PORT JERVIS LABORATORIES, INC. f/k/a KOLMAR LABORATORIES, INC.’S MOTION TO DISMISS FOR FORUM NON CONVENIENS Clyde & Co US LLP The Chrysler Building 405 Lexington Avenue, 16th Floor New York, New York 10174 Attorneys for Defendant Port Jervis Laboratories, Inc. 1 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 TABLE OF CONTENTS Page PLAINTIFFS’ OPPOSITION..........................................................................................................1 ARGUMENT IN REPLY ................................................................................................................1 I. THERE ARE NO FACTS WHICH EVEN REMOTELY DEMONSTRATE A “SUFFICIENT NEXUS” TO NEW YORK..........................1 A. Plaintiffs’ Own Affidavits Further Demonstrate Why Dismissal Pursuant to CPLR 327(a) is Appropriate. ....................................................1 B. Generalized, Non-Case-Specific Conduct by Defendants is Not Sufficient to Support Jurisdiction in New York. .........................................4 C. Claims that it Will Be “Easy” to Obtain Evidence and Witnesses from Canada are Difficult to Countenance. .................................................6 D. Merely Because Plaintiffs Prefer New York, Such Does Not Demonstrate that Canada is an Unsuitable Forum. ....................................10 II. APPLICABLE CASE LAW MILITATES STRONGLY IN FAVOR OF DISMISSAL. .........................................................................................................11 CONCLUSION ..............................................................................................................................14 i 2 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 TABLE OF AUTHORITIES Page Cases Alberta & Orient Glycol Co. Ltd. v. Factory Mut. Ins. Co., No. 603150/05, 2007 WL 6881693 (Sup. Ct. Apr. 24, 2007) aff’d, 49 A.D.3d 276 (1st Dep’t 2008) ...................................................................................................................8 Alston v. Divine Bros. Co., 195 A.D.3d 563 (1st Dep’t 2021) ..................................................................................8, 12 Christina Thomas v. Avon Products, Inc., Index No. 190126/2020 (Sup. Ct., N.Y. Cty.) .....................................................................7 English v. Avon Prods., Inc., 194 A.D.3d 480 (1st Dep’t 2021) ......................................................................................12 Globalvest Mgmt. Co. L.P. v. Citibank, N.A., 7 Misc.3d 1023(A) (Sup. Ct., N.Y. Cty. 2005) ..................................................................12 In re New York City Asbestos Litig. (“Ward”), No. 190091/16, 2018 WL 3575063 (Sup. Ct., N.Y. Cty. Jul. 25, 2018) .......................5, 13 Jackam v. Nature’s Bounty, Inc., 70 A.D.3d 1000 (2d Dep’t 2010) ...................................................................................9, 12 Lois Prokocimer v. Kolmar Laboratories, Inc., Index No. 190019/2019 (Sup Ct., N.Y. Cty. May 3, 2019) ............................................. 5-6 Martin v. Mieth, 35 N.Y.2d 414 (1974) ..........................................................................................................3 Nat’l Bank & Trust Co. of N. Am. v. Banco De Vizcaya, 72 N.Y.2d 1005 (1988) ................................................................................................ 11-12 Patron v. Patron, 67 Misc.2d 639 (Sup. Ct., N.Y. Cty. 1971) .........................................................................8 People v. McCartney, 38 N.Y.2d 618 (1976) ..........................................................................................................8 Rodionov v. Redfern, 173 A.D.3d 410 (1st Dep’t 2019) ..............................................................................3, 9, 12 Shin-Etsu Chem. Co., Ltd. v. ICICI Bank Ltd., 9 A.D.3d 171 (1st Dep’t 2004) ..........................................................................................10 ii 3 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 TABLE OF AUTHORITIES Page Cases Silver v. Great Am. Ins. Co., 29 N.Y.2d 356 (1972) ..........................................................................................................3 Slattery v. Colgate-Palmolive Co., No. 190090/16, 2018 WL 3241906 (Sup. Ct., N.Y. Cty. Jul. 2, 2018) ..................... 4-5, 13 Other Authorities C.P.L.R. 327............................................................................................................................................ 1, 3 W.A. Bogart, “Guardian of Civil Rights…Medieval Relic”: The Civil Jury In Canada, 62-SPG Law & Contemp. Probs. 305, 306, 312 (1999) ........................................................ 11 iii 4 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 Port Jervis Laboratories, Inc. f/k/a Kolmar Laboratories, Inc. (“Port Jervis”) respectfully submits this Reply Memorandum of Law in support of its motion to dismiss, pursuant to C.P.L.R. 327, based on the doctrine of forum non conveniens. PLAINTIFFS’ OPPOSITION Plaintiffs have interposed opposition by way of Affirmation and Memorandum of Law dated July 10, 2023. Therein, Plaintiffs set forth the following arguments in opposition: (1) there are sufficient connections to New York to warrant retaining jurisdiction;1 and (2) applicable case law favors denial of the motion to dismiss.2 It is respectfully submitted that Plaintiffs’ position is supported by neither the record nor applicable law. Among other deficiencies in Plaintiffs’ argument, three (3) brief visits to New York over the course of a lifetime are clearly insufficient to sustain jurisdiction. As such, it is respectfully submitted that Plaintiffs’ forum shopping should not be rewarded, and dismissal is very clearly appropriate. ARGUMENT IN REPLY I. THERE ARE NO FACTS WHICH EVEN REMOTELY DEMONSTRATE A “SUFFICIENT NEXUS” TO NEW YORK. A. Plaintiffs’ Own Affidavits Further Demonstrate Why Dismissal Pursuant to CPLR 327(a) is Appropriate. Initially, it should be recalled why, exactly, the instant motion was interposed. According to the complaint, Ms. Al Saad was a resident of Ontario, Canada. Her surviving spouse is also a resident of Ontario, Canada. Her estate is being probated in Ontario through the Ontario Superior Court of Justice. The trustee of her estate is a resident of Ontario. Moreover, while it is alleged 1 See Plaintiffs’ Memorandum of Law in Opposition to Port Jervis’ Motion to Dismiss Pursuant to C.P.L.R. 327, dated July 10, 2023 (“Pls’ Opp.”), at 3-33. 2 Id. at 34-57. 1 5 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 that some of her purported use of talc products occurred in New York, it appears that the majority occurred elsewhere: namely, Canada. Equally important for the purposes of this motion, it appears that any and all witnesses, medical records, employment records, etc. are located in Canada. As such, essentially all critical evidence in this case is beyond the reach of this Court, and defendants will have no ability to obtain same. Nevertheless, Plaintiffs contend that there are sufficient connections to New York so as to warrant retaining jurisdiction. However, even cursory review of Plaintiffs’ opposition reveals very little in terms of demonstrable evidence to support their position. Plaintiffs point first to what is styled “testimony” of Ms. Al Saad’s daughter, Dinan Mohammad.3 Yet there is no testimony in connection with this matter. Rather, Ms. Mohammad has submitted a conclusory and self-serving affidavit which merely claims that Ms. Al Saad purchased talc products in New York on two brief occasions (a one-week visit in 2015, and a wedding in 2019) – over the course of her entire life.4 Plaintiffs also point to the “testimony” (again, an affidavit) of Ms. Al Saad’s son, Dan Albasry. Yet this affidavit merely states that Ms. Al Saad used a talc product in New York on one occasion throughout her life: the above-mentioned 2019 wedding.5 As such, it offers even less than the affidavit of Ms. Mohammad. Finally, Plaintiffs cite to an affidavit executed by Maytham Ibrahim, Ms. Al Saad’s brother. But the most Mr. Ibrahim can say is that Ms. Al Saad purchased unknown talc products in New York on one additional occasion: a ten-day trip in 1996.6 3 Id., at 11-13. 4 Id. 5 Id. at 13-14. 6 Id. at 14-15. 2 6 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 In sum, taking the entirety of Plaintiffs’ affidavits together, the most that is demonstrated is that Ms. Al Saad used or purchased talc products in New York on three occasions over the course of her entire life. Additionally, closer scrutiny of the above affidavits reveals that all three affiants – presumably, the primary fact witnesses in this case – reside in Canada. As such, they (along with all other case-specific witnesses and evidence) are well beyond the subpoena power of New York courts. If anything, these affidavits demonstrate exactly why New York is a palpably improper forum in which to adjudicate this case. Certainly, they do nothing to demonstrate a “substantial nexus” with New York. And, as the Court of Appeals has noted, without this showing New York courts should not accept jurisdiction. See Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 361 (1972). Rather, in absence of a substantial nexus with New York, this Court should dismiss the action under the doctrine of forum non conveniens. See C.P.L.R. 327(a); Martin v. Mieth, 35 N.Y.2d 414, 418 (1974) (holding that “[s]ince the touchstone of forum non conveniens is flexibility, our courts need not entertain causes of action lacking a substantial nexus with New York.”) (citations omitted). Of note, even if Ms. Al Saad did on occasion use talc powder products within the State of New York, such as on vacations, business meetings, or some other sporadic manner, such sporadic use will not create a nexus with New York such as to defeat a form non conveniens motion. See Rodionov v. Redfern, 173 A.D.3d 410, 410 (1st Dep’t 2019) (granting defendant’s forum non conveniens motion where the bulk of the transactions causing plaintiff’s injury occurred in Cyprus rather than New York). In sum, Plaintiffs’ own evidentiary offerings only serve to further underscore why dismissal pursuant to C.P.L.R. 327(a) is proper. 3 7 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 B. Generalized, Non-Case-Specific Conduct by Defendants is Not Sufficient to Support Jurisdiction in New York. No doubt mindful of the above, the remainder of Plaintiffs’ attempt to demonstrate any sort of nexus is confined to claims of generalized, non-case-specific New York-based conduct by the Defendants. For example, Plaintiffs argue that Port Jervis assisted in the production of Johnson’s Baby Powder and Shower-to-Shower for several years by blending a portion of the products in New York.7 Plaintiffs also variously argue that Port Jervis had a sales office in New York;8 that the “cosmetic industry” as a whole has connections to New York;9 that Defendants attended CTFA trade shows in New York;10 that Johnson & Johnson disputed tests of talc products in New York;11 and that other Defendants also have offices in New York and/or are New York-based.12 Yet case law finds that none of these facts in any way supports maintaining jurisdiction in New York. In particular, it goes without saying that non-case-specific conduct by a defendant – i.e., conducting business in New York, maintaining offices in New York, etc. – is not sufficient to demonstrate a “substantial nexus.” Indeed, if it were, then jurisdiction would always be proper no matter how attenuated a plaintiff’s contacts were with this state. Decisions by this very Court reveal exactly the opposite. For example, in Slattery v. Colgate-Palmolive Co., No. 190090/16, 2018 WL 3241906, at *1 (Sup. Ct., N.Y. Cty. Jul. 2, 2018) (see McCaffrey Aff. Ex. E), Plaintiff Rebecca Slattery allegedly developed mesothelioma due to her exposure to asbestos purportedly contained in 7 Pls’ Opp. at 15-18. 8 Id. at 18-19. 9 Id. at 19-25. 10 Id. at 20-24. 11 Id. at 25-26. 12 Id. at 31-32. 4 8 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 defendant Colgate-Palmolive’s Cashmere Bouquet Talcum powder. She was exposed to that product in Connecticut, where she resided for upwards of 40 years. Id. After she ceased using the product, she moved to Virginia and continued to reside there at all relevant times. She was diagnosed with mesothelioma in Virginia, and her medical treatment also occurred there. Under these facts, this Court granted Colgate-Palmolive’s motion to dismiss, noting that: This court is of the opinion that in balancing the interests and convenience of the parties and the court’s this action could better be adjudicated in either the courts of the State of Connecticut or the State of Virginia. The only nexus this action has with the State of New York is that the corporate defendant has its principal place of business in New York. The plaintiffs are residents of the state of Virginia and Plaintiff Rebecca Slattery was exposed to the defendant’s product while she resided in the state of Connecticut. The medical treatment, her medical doctors and all her witnesses are in the State of Virginia. Under these facts the action should be dismissed without prejudice on the grounds of forum non conveniens. Id. at *3. Similarly, in In re New York City Asbestos Litig. (“Ward”), No. 190091/16, 2018 WL 3575063, at *3 (Sup. Ct., N.Y. Cty. Jul. 25, 2018) (see McCaffrey Aff., Ex. F), this Court granted dismissal based on forum non conveniens because: …in balancing the interests and convenience of the parties and the court’s, this action could better be adjudicated in the courts of the State of Texas. The only nexus this action has with the State of New York is that the corporate defendant has its principal place of business in New York. The plaintiff is a resident of the State of Texas and Plaintiff Sharon Ward was exposed to the defendant’s product while she resided in the State of Texas. The medical treatment, her medical doctors and almost all of her witnesses are in the State of Texas. Under these facts the action should be dismissed without prejudice on the grounds of forum non conveniens. Id. at *3. Additionally, this Court has already reviewed the exact same generalized “defendant- conduct” evidence proffered by Plaintiffs herein and found it to be inadequate to serve as “substantial events” sufficient to support jurisdiction. Specifically, the plaintiffs in Prokocimer sought to rely on the same evidence – namely, CTFA membership and trade show attendance – in 5 9 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 an attempt to secure New York County venue for plaintiffs who were Florida residents. See Prokocimer, supra, at *1-2. However, this Court rightly rejected such evidence, noting that: Kolmar’s claimed participation in Cosmetic Toiletries and Fragrance Association meetings in New York County have not been shown to be a substantial part of the events giving rise to plaintiff’s claim… See Lois Prokocimer v. Kolmar Laboratories, Inc., Index No. 190019/2019 (Sup Ct., N.Y. Cty. May 3, 2019), at *2. So too in the case at bar. As Plaintiffs herein have offered nothing beyond CTFA meetings, trade show attendance, and non-case-specific conduct by various Defendants, there is clearly nothing which even remotely approaches a “substantial nexus” to support jurisdiction in New York. The events cited by Plaintiffs herein are neither substantial nor, in truth, related other than tangentially to any claims herein. C. Claims that it Will Be “Easy” to Obtain Evidence and Witnesses from Canada are Difficult to Countenance. Perhaps the most curious argument advanced by Plaintiffs is the claim that Defendants will “easily” be able to obtain any and all relevant evidence from Canada.13 As Plaintiffs put it, the medical records they have thus far made available indicate Plaintiff has “no significant past medical history” worth looking into, and that “all relevant” discovery has already been produced (even though the case was just recently filed and no depositions have taken place).14 Respectfully, while Plaintiffs are already declaring discovery to be largely complete, it goes without saying that the opinions of defense counsel on this subject may well differ from those of Plaintiffs’ counsel. First, Plaintiffs appear to believe that medical records – and specifically medical records they select – constitute the only “relevant” evidence. This entirely ignores the fact 13 Pls’ Opp. at 27-29. 14 Id. at 28-29. 6 10 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 that discovery in asbestos cases regularly includes employment records, military records, medical records beyond those initially disclosed, and non-party witnesses not hand-picked by the plaintiff. Second, as this Court is well aware, even obtaining agreed-upon/non-contested medical records and pathology from another U.S. jurisdiction – much less Canada – is a time-consuming and difficult process. By way of example, in Christina Thomas v. Avon Products, Inc., Index No. 190126/2020 (Sup. Ct., N.Y. Cty.), Plaintiffs also claimed to have disclosed all “relevant” medical records. It was later discovered that Plaintiffs had not provided several blocks of pathology which were in the possession of Brigham & Women’s Hospital in Massachusetts. This affirmant was therefore compelled to file an application with this Court on February 22, 2023, seeking an out-of-state commission for a subpoena to obtain the pathology. See Christina Thomas v. Avon Products, Inc., Index No. 190126/2020 (Sup. Ct., N.Y. Cty.), NYSCEF Doc. Nos. 77-86. Once that application was granted, this affirmant was then required to file a motion in Superior Court, Suffolk County, MA, seeking to domesticate the subpoena. See the accompanying Reply Affirmation of Kevin C. McCaffrey, dated September 14, 2023 (“McCaffrey Reply Aff.”), Ex. A. Once that motion was granted, the subpoena was finally served on Brigham & Women’s Hospital. Yet still the hospital refused to release the pathology. This office was therefore compelled to file a motion seeking contempt against Brigham & Women’s Hospital. See McCaffrey Reply Aff., Ex. B. As of today’s date, while that motion has been served, incredibly the hospital still has not provided the pathology. In sum, even obtaining medical records from another state can be (and typically is) a time- consuming and expensive process. It can only be imagined how much more time-consuming and expensive the process will be when another country is involved. This is why the most prejudicial 7 11 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 aspect of maintaining this action in New York is the obvious hardship in terms of accessing witnesses and evidence. As noted, it appears that any and all witnesses in this case are located in Canada, including Ms. Al Saad’s spouse, her extended family, and her co-workers. Any and all medical records, including pathology, are located in Canada. It also appears that her employment was either entirely or primarily in Canada. In sum, essentially all critical evidence in this case is beyond the reach of this Court, and Defendants will have no ability to obtain any evidence that Plaintiffs do not agree is relevant. These obvious hardships, beyond any other considerations, weight heavily in favor of dismissal. In particular, it is well established that New York courts cannot issue subpoenas on those witnesses outside of its jurisdiction. See People v. McCartney, 38 N.Y.2d 618, 621 (1976); Patron v. Patron, 67 Misc.2d 639, 640 (Sup. Ct., N.Y. Cty. 1971) (noting that witnesses outside of the jurisdiction of the court are beyond the subpoena power of that court). New York courts have consistently recognized that “[t]o fix the place of trial at a point where litigants cannot compel personal attendance [of witnesses] and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants.’” Alberta & Orient Glycol Co. Ltd. v. Factory Mut. Ins. Co., No. 603150/05, 2007 WL 6881693, at *28 (Sup. Ct. Apr. 24, 2007) aff’d, 49 A.D.3d 276 (1st Dep’t 2008) (quoting VictoriaTea.com Inc. v. Cott Beverages, Can., 239 F. Supp.2d 377, 384 (S.D.N.Y. 2003)). Moreover, where the identified witnesses are located outside of New York, this factor supports dismissal on the basis of forum non conveniens. See Alston v. Divine Bros. Co., 195 A.D.3d 563, 563 (1st Dep’t 2021) (granting New York defendant’s forum non conveniens motion where the situs of the accident, identified witnesses, and plaintiff all resided in Ohio, not New 8 12 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 York); Rodionov, 173 A.D.3d at 410 (granting defendant’s forum non conveniens motion, in part, where the bulk of the litigants and witnesses were located in Cyprus, rather than New York); Jackam v. Nature’s Bounty, Inc., 70 A.D.3d 1000, 1001-02 (2d Dep’t 2010) (granting New York defendants’ forum non conveniens motion, in part, where plaintiff received all medical treatment in Georgia, all of plaintiff’s treating physicians were in Georgia and fact witnesses were located in Georgia). In the instant matter, Plaintiffs are residents of Ontario, Canada. See McCaffrey Aff., Ex. A at 7. Ms. Al Saad was a resident of Ontario, Canada at the time of her death and previously lived and worked there. Id. Ms. Al Saad’s personal affects, correspondences, financial records, and employment records are all likely within Canada, within the Trusteeship established by the Ontario Court of Justice to manage Ms. Al Saad’s estate and/or with various Canadian governmental agencies. Ms. Al Saad’s treating physicians, medical records, and pathology are all similarly located in Ontario, Canada. See generally McCaffrey Aff., Ex. C at 2; Ex. D at 1. Because Plaintiffs are residents of Canada, it stands to reason that any fact witnesses which might be called by Plaintiffs or Defendants at trial or to appear in depositions are similarly located in Canada since there is no indication that Ms. Al Saad ever lived or worked in the United States. See generally, McCaffrey Aff. Ex. A. In sum, Plaintiffs’ allegations do not suggest that any of their witnesses in this case are in New York, or even the United States. Id. In sum, because essentially all case-specific documents and witnesses are located in Canada, they are very clearly outside of the subpoena power of the courts of New York. This substantial burden, and obvious prejudice, should not be permitted. 9 13 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 D. Merely Because Plaintiffs Prefer New York, Such Does Not Demonstrate that Canada is an Unsuitable Forum. Plaintiffs also appear to advance the argument that the Canadian legal system is so intrinsically flawed and/or sensationally unfair that prosecuting this case in their home forum would be, at best, a farcical endeavor.15 As Plaintiffs claim, procedural rules are “constrained” as regards products liability, it can be “risky and expensive” to sue due to a loser-pay rule, and as such it is “common” to forum shop in U.S. courts.16 Plaintiffs even trot out a Canadian plaintiff’s attorney who complains about the risk and expense involved in such litigation, and notes that the right to a jury trial in Canada is technically not absolute – although, tellingly, no specifics are provided on this point.17 But he finally gets around to the real complaint Plaintiffs evidently have herein: namely, the fact that there are caps on non-pecuniary damages in Canada.18 In sum, reading between the lines, the most that Plaintiffs can offer on this issue is that New York is more appealing because it is less “risky and expensive” (for Plaintiffs) and offers a higher likelihood of a jackpot verdict. But clearly these concerns are not among those which support retaining jurisdiction in this state. It goes without saying that Ontario, Canada is readily available and perfectly suited as a forum to litigate this dispute. “Ordinarily, [the] requirement [of an adequate alternative forum] will be satisfied when the defendant is ‘amenable to process’ in the other jurisdiction,” but “dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute.” Shin-Etsu Chem. Co., Ltd. v. ICICI Bank Ltd., 9 A.D.3d 171, 178-79 (1st Dep’t 2004) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254, n.22 (1981)). 15 Pls’ Opp. at 29-31. 16 Id. 17 Id. 18 Id. at 30. 10 14 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 Here, it is uncontested that Canada is an adequate alternate forum, notwithstanding complaints of “risk and expense” or lower sustainable verdicts. There is no indication that the courts in Ontario would not entertain a tort action between the Plaintiffs and the Defendants named in the instant matter. There is no indication that Plaintiffs would be prejudiced by litigating this suit in Canada. And notwithstanding Plaintiffs’ claims that the right to a jury trial is not absolute, civil litigants in Canada are entitled to a jury trial and Ontario, in fact, is one of the Canadian provinces in which civil jury trials occur the most frequently. See W.A. Bogart, “Guardian of Civil Rights…Medieval Relic”: The Civil Jury In Canada, 62-SPG Law & Contemp. Probs. 305, 306, 312 (1999). As such, Plaintiffs’ complaints regarding the Canadian legal system are hardly compelling. II. APPLICABLE CASE LAW MILITATES STRONGLY IN FAVOR OF DISMISSAL. The remainder of Plaintiffs’ opposition is essentially a regurgitation of inapposite case law.19 In fact, Plaintiffs provide more than fifteen (15) pages of citations and pull-quotes.20 Yet what is missing is what is most telling: Plaintiffs provide not one single case in which a total of three (3) visits to New York was somehow deemed sufficient to sustain jurisdiction in the context of an asbestos-related lawsuit. No doubt this is because no such case exists, and truly applicable case law does not even remotely approach endorsing such a view, whether as regards asbestos litigation or litigation in general. It should here be recalled that while Ms. Al Saad visited New York on three (3) occasions, the overwhelming majority of her purported use of talc products occurred in Canada. New York courts look at the material events relating to a plaintiff’s complaint and where these events 19 Pls’ Opp. at 41-69. 20 Id. 11 15 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 occurred. For example, in Nat’l Bank & Trust Co. of N. Am., the Court of Appeals affirmed a forum non conveniens dismissal when the contract at issue in that lawsuit was entered into in Spain, and the entities, persons and events were predominantly situated in Spain. Nat’l Bank & Trust Co. of N. Am. v. Banco De Vizcaya, 72 N.Y.2d 1005 (1988); see also Alston, 195 A.D.3d at 563 (granting New York defendant’s forum non conveniens motion where the situs of the accident, identified witnesses, and plaintiff all resided in Ohio); Rodionov, 173 A.D.3d at 410 (granting defendant’s forum non conveniens motion where a portion of plaintiff’s injury, litigants, and witnesses were located in Cyprus, rather than New York); Jackam, 70 A.D.3d at 1000-02 (granting New York defendants’ forum non conveniens motion where plaintiff, a Georgia resident, purchased and was injured by defendant’s product in Georgia and received medical treatment in Georgia.); Globalvest Mgmt. Co. L.P. v. Citibank, N.A., 7 Misc.3d 1023(A) (Sup. Ct., N.Y. Cty. 2005) (finding Brazil to be the appropriate forum because virtually all of the events relating to the complaint, including the events leading to the commencement of the lawsuit and conduct of the lawsuit occurred in Brazil and not New York). Of note – and particularly relevant to asbestos-related claims – if a plaintiff’s injury was ongoing over a period of years but was sporadic or infrequent within the plaintiff’s chosen forum, this will not create a suitable nexus such as to connect the plaintiff’s claims the venue to defeat a forum non conveniens motion. See Rodionov, 173 A.D.3d at 410 (granting defendant’s forum non conveniens motion where the bulk of the transactions causing plaintiff’s injury occurred in Cyprus, rather than New York); English v. Avon Prods., Inc., 194 A.D.3d 480, 481 (1st Dep’t 2021) (denying defendant’s forum non conveniens motion where plaintiff used and was injured by defendant’s products hundreds of times within New York) (emphasis added). 12 16 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 Having reviewed Plaintiffs’ opposition, it is now abundantly clear that Ms. Al Saad never lived or worked in New York or the United States. And, even if occasional use occurred in New York, such sporadic or transient use will not create a nexus sufficient to sustain jurisdiction. Along these lines, it is perhaps worth recalling this Court’s reasoning in Slattery and Ward. There, as here, plaintiffs were non-residents who claimed exposure to talc products used almost entirely outside of New York. There, as here, all medical treatment occurred outside of New York. And there, as here, plaintiffs claimed that defendants’ in-state general business activity, or corporate offices, supported New York jurisdiction. This Court disagreed: The only nexus this action has with the State of New York is that the corporate defendant has its principal place of business in New York. The plaintiffs are residents of the state of Virginia and Plaintiff Rebecca Slattery was exposed to the defendant’s product while she resided in the state of Connecticut. The medical treatment, her medical doctors and all her witnesses are in the State of Virginia. Under these facts the action should be dismissed without prejudice on the grounds of forum non conveniens. Slattery v. Colgate-Palmolive Co., No. 190090/16, 2018 WL 3241906, at *3 (Sup. Ct., N.Y. Cty. Jul. 7, 2018) (citations omitted). The only nexus this action has with the State of New York is that the corporate defendant has its principal place of business in New York. The plaintiff is a resident of the State of Texas and Plaintiff Sharon Ward was exposed to the defendant’s product while she resided in the State of Texas. The medical treatment, her medical doctors and almost all of her witnesses are in the State of Texas. Under these facts the action should be dismissed without prejudice on the grounds of forum non conveniens. In re New York City Asbestos Litig. (“Ward”), No. 190091/16, 2018 WL 3575063, at *3 (Sup. Ct., N.Y. Cty. Jul. 25, 2018). So too in the case at bar. Plaintiffs herein would have this Court ignore its own prior decisions, as well as case law generally, and permit jurisdiction to rest on the most tenuous of circumstances: namely, three (3) visits to New York which involved purchasing or using products which may (or may not) have contained asbestos. There is no precedent for an exercise of 13 17 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 jurisdiction based on such facts, and the Court should not accept Plaintiffs’ invitation to become a vanguard on this particular area of law. CONCLUSION In sum, based on the above, and the record before the Court in toto, it is respectfully submitted that the instant motion should be granted in its entirety. WHEREFORE, Defendant Port Jervis Laboratories, Inc., f/k/a Port Jervis Laboratories, Inc. respectfully requests that this Court issue an order: (1) granting the instant motion to dismiss based on forum non conveniens; and (2) granting such other and further relief as may be deemed just, proper, and equitable. Dated: New York, New York September 14, 2023 Respectfully submitted, CLYDE & CO US LLP By: /s/ Kevin C. McCaffrey Kevin C. McCaffrey The Chrysler Building 405 Lexington Avenue, 16th Floor New York, New York 10174 Phone: (212) 710-3900 Fax: (212) 710-3950 Email: kevin.mccaffrey@clydeco.us Attorneys for Defendant Port Jervis Laboratories, Inc. 14 18 of 19 FILED: NEW YORK COUNTY CLERK 09/14/2023 03:40 PM INDEX NO. 190002/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 09/14/2023 WORD COUNT CERTIFICATION Kevin C. McCaffrey hereby certifies, pursuant to 22 NYCRR 202.8-b(c) that the REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PORT JERVIS LABORATORIES, INC. f/k/a KOLMAR LABORATORIES, INC.’S MOTION TO DISMISS FOR FORUM NON CONVENIENS contains 4,300 words, not including the caption and signature block and, further, the document complies with the word count limit in 22 NYCRR 202.8-b(a)(i). Dated: New York, New York September 14, 2023 /s/ Kevin C. McCaffrey KEVIN C. MCCAFFREY 1 19 of 19