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D''Agostino v. Johnson & Johnson Inc.

Decided: June 28, 1989.

RICHARD J. D'AGOSTINO, PLAINTIFF-RESPONDENT,
v.
JOHNSON & JOHNSON, INC., ROBERT N. WILSON, AND RONALD G. GELBMAN, DEFENDANTS-APPELLANTS



On certification to the Superior Court, Appellate Division, whose opinion is reported at 225 N.J. Super. 250 (1988).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, O'Hern, and Stein and Judges Coleman and Deighan. For reversal -- none.

Per Curiam

[115 NJ Page 493] We affirm the judgment of the Appellate Division substantially for the reasons set forth in Judge Baime's thoughtful and comprehensive opinion below. 225 N.J. Super. 250 (1988).

We concur with the Appellate Division's summary of the general principles that guide application of the doctrine of forum non conveniens:

As we have pointed out, the present tendency is to avoid a rigid formula and to weigh sundry factors, both private and public, which bear upon the justness of a plaintiff's choice. Nevertheless, "emphasis continues upon the element of harassment and vexation notwithstanding reference also to the element of trial convenience." [ Starr v. Berry, 25 N.J. 573, 584 (1959)]. There, thus, has emerged over the years the principle that plaintiff's choice may not be defeated upon a mere balance of conveniences. [ Id. ] Consequently, "a plaintiff's choice of forum ordinarily will not be disturbed except upon a clear showing of real hardship or for some other compelling reason." [ Civic Southern Factors v. Bonat, 65 N.J. 329, 333 (1974)]. Dismissal of a complaint is unwarranted unless the plaintiff's choice is shown to be "demonstrably inappropriate." [ Id. ] [225 N.J. Super. at 262.]

We are also fully in accord with the Appellate Division's conclusion that a weighing of the private-interest factors described in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055, 1062 (1947), did not warrant dismissal of plaintiff's action. As the Appellate Division observed, "several of the factors favor prosecution of the litigation in New Jersey and * * * others are neutral." 225 N.J. Super. at 264.*fn1

We comment briefly on the Appellate Division's discussion, id. at 265-66, of the public-interest factors identified in Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508-09, 67 S. Ct. at 843, 91 L. Ed. at 1062-63, in order to underscore the limited relevance of New Jersey's substantive law as a factor controlling

the disposition of the forum non conveniens question. We note that both the Appellate Division, 225 N.J. Super. at 265-66, and the Law Division referred to our underlying substantive law in support of their conflicting conclusions on the forum non conveniens motion.

In Gulf Oil, supra, the Supreme Court identified some of the factors that are pertinent to the resolution of forum non conveniens questions, classifying them generally as private-interest and public-interest factors. The Court offered examples of the so-called public-interest factors: the undue concentration of litigation in congested venues; the burden of jury duty on a community with no relation to the litigation; the desirability of trying cases in courts readily accessible to citizens who might be interested in the proceedings; and the desirability of litigating a case in the jurisdiction whose law will govern the outcome. 330 U.S. at 508-09, 67 S. Ct. at 843, 91 L. Ed. at 1062-63. We note that the focus of these public-interest factors is on the existence of a factual nexus between the issues in the litigation and the forum selected by the plaintiff. Ordinarily, the type of factual nexus that would induce a court to retain jurisdiction would be manifested by a significant relationship between the issues in the case and the jurisdiction whose court was designated as the place for trial. There is no suggestion that the nexus must be such that the substantive law of the forum state supports the relief sought by the plaintiff.

Thus, Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981), involved the propriety of the district court's dismissal, on forum non conveniens grounds, of a wrongful death action brought by the administratrix of the estates of several Scottish citizens, killed in an air crash in Scotland, against the American manufacturers of the plane and its propellers. The Court of Appeals reversed the dismissal, concluding in part that dismissal of an action on forum non conveniens grounds is never appropriate where the law of the alternative forum -- in that case Scotland -- was less favorable to plaintiff. 630 F.2d 149, 163-64 (3d Cir.1980). The Supreme

Court reversed, emphasizing that differences in substantive law should be accorded little significance in the resolution ...


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