We’ve talked a fair amount about forum shopping on this blog. Forum shopping is largely in the control of plaintiffs’ counsel because they, within reason, get to choose where to file their clients’ lawsuits. And since they do need some reason, there are several frequently used methods by plaintiffs’ counsel when they’ve narrowed in on the court they’ve decided would be most favorable for their clients – typically state court. If a plaintiff wants to stay in state court where he/she resides, he/she sues a non-diverse party. In drug and device cases, that’s usually a pharmacy, a sales representative, a doctor. Sometimes the joinder of such a defendant is fraudulent and the case becomes removal, sometimes not. Another option is to sue a defendant in state court where the defendant resides, a court from which the defendant cannot remove the case. While venue in that scenario may be proper, where the only connection to the jurisdiction is the presence of the defendant, defendants have met with mixed success in arguing forum non conveniens. Just think, if plaintiff lives in Nebraska, ingested the drug in Nebraska, suffered her injury in Nebraska, but files suit in New Jersey – where is most of the discovery that is needed located? Especially discovery from third-parties who will require subpoenas. What state’s law is likely to apply to the bulk of the claims? Doesn’t make a lot of sense to be in New Jersey except for plaintiff’s preference to be in state court.
But what about when plaintiff’s choice of forum doesn’t turn out like he/she hoped? Should they get a do-over? A mulligan? A second chance? We don’t think so and neither did the court in Zarilli v. Johnson & Johnson, Docket No. ATL-L-1480-16, slip op. (N.J. Super. Law Div. Feb. 3, 2017). This case is one of several pending in New Jersey involving allegations of injury from the use of talc powder. The cases have been coordinated before a single judge for pre-trial proceedings. Plaintiff originally filed her suit in July 2016, and amended her complaint in September 2016. Defendants answered the complaint in October. Id. at 2.
Case Management Order No. 2, referenced in the decision, and available here, sets up a bellwether trial schedule, which included dispositive motions and Kemp motions/hearings (NJ’s Daubert). Zarilli was not one of the bellwether cases so discovery was stayed for her. In the bellwether cases, the court found plaintiff’s expert causation evidence was lacking and granted summary judgment. We blogged about that decision here. That ruling is now on appeal and has apparently caused a slowdown in the progress of setting additional cases for trial. Id. at 2.
So, Plaintiff Zarilli decided she wanted to voluntarily dismiss her case without prejudice in order to “explore other options that may provide her and her family with a faster resolution of her claims.” Id. She should have just said, I thought New Jersey was a good fit, but turns out I’m looking for something with a little more leniency on expert admissibility. Here’s my receipt. I’ll take a full refund and take my business elsewhere. But forum shopping actually has some similarities to consumer shopping. Check the receipt for the last pair of shoes you bought – bet you’ve only got about 30-days to return them and they better be like new. There is also a window of time when a plaintiff can simply pack up and walk away to re-file in another jurisdiction – that’s before the defendant has answered or responded to the complaint. N.J. Rule 4:37-1(a). But after that grace period, once a defendant has answered or moved, “an action shall be dismissed at the plaintiff’s instance only by leave of court upon such terms and conditions as the court deems appropriate.” N.J. Rule 4:37-1(b). Defendants challenged the “without prejudice” condition of the dismissal. Id. at 3.
The plaintiff was rather transparent in her reason for seeking without prejudice dismissal – finding a jurisdiction where the science will be viewed more favorably for plaintiffs. As to that, the court concluded that “buyers’ remorse is not a legitimate reason to dismiss without prejudice.” Id. at 5. It’s sort of a “you made your bed, now lie in it” situation. But the winds have changed in New Jersey, something plaintiff’s counsel may have overlooked. While the decision doesn’t say this – if plaintiff wants to try to get out from under the bellwether Kemp decision, rather than trying to find a new jurisdiction, she should be spending her time trying to find a new expert. We don’t think that will save the day based on the thorough decision the court previously entered – but that’s the answer.
And on plaintiff’s claim that she is concerned that the litigation is moving too slowly given her state of health, the court was only too willing to accommodate a request for discovery to proceed in the case so that it could be promptly preserved. Id. Again, another more reasonable solution than forum shopping.
And now you can accuse of us hiding the lead because we’ve purposefully not mentioned that in addition to defendants being New Jersey companies, plaintiff is a New Jersey resident. Id. at 2. It would be difficult for plaintiff to argue the forum she chose was improper, but this plaintiff couldn’t even if she wanted to. Where else was plaintiff going to go? There could be no harm to plaintiff in litigating her case in the forum in which she lives, in which she used the product, in which she was diagnosed and treated for her injury. Id. at 3.
Plaintiff can either move forward in New Jersey or decide to no longer pursue her case. Regret is simply an insufficient basis for a dismissal without prejudice.