November 28, 2020

Volume X, Number 333


November 25, 2020

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West Virginia Supreme Court Upholds Dismissal on Forum Non Conveniens Grounds

The West Virginia Supreme Court has recently upheld the dismissal of several out-of-state plaintiffs from a products liability suit on forum non conveniens grounds. The plaintiffs alleged that they developed diabetes from using a cholesterol maintenance drug, but the dismissed plaintiffs did not allege that they were prescribed the medication in West Virginia, developed diabetes in West Virginia, or that they had any other connection to West Virginia whatsoever.

In upholding the dismissal, the Court found that the circuit court properly analyzed each part of the eight-factor forum non conveniens test provided by West Virginia Code § 56-1-1a. Of the eight factors, the dismissed plaintiffs only contested the availability of another adequate forum. In examining the availability of an alternate forum, the circuit court found that the out-of-state plaintiffs had adequate alternative forums in which to pursue remedies, namely, in their home states because both states “recognize product liability causes of action” and provide remedies.  

An alternate forum is presumed to “exist” where the defendant is amenable to process. However, such presumption may be defeated if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all. In such cases, the alternate forum ceases to “exist” for purposes of forum non conveniens, and dismissal in favor of that forum would constitute error. However, in the instant case, no such bar existed because:

  1. refiling in plaintiffs’ home states would not conflict with statutes of limitations (and the existing statutes would be tolled regardless);

  2. those states’ statutory and common law did not otherwise bar plaintiffs’ claims; and

  3. the defendants would have been amenable to service of process in those states.

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume VI, Number 335



About this Author

Jim Mulhall, Litigation Attorney, Steptoe Johnson Law FIrm

Jim Mulhall is the leader of the firm's Products Liability Practice Group and Toxic Torts Team.  Mr. Mulhall concentrates his practice in the areas of asbestos, product liability, toxic torts, and mass tort litigation.  He is the co-chair of the International Dispute Resolution Practice Group in TerraLex.

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