SER Ford Motor Co. v. Hon. David W. Nibert, Judge

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
January 2015 Term April 9, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 14-0766 OF WEST VIRGINIA
STATE OF WEST VIRGINIA ex rel. FORD MOTOR COMPANY; JACK GARRETT
FORD, INC., a West Virginia Corporation; and DOES 1-50 INCLUSIVE,
Petitioners
v.
THE HONORABLE DAVID W. NIBERT, Judge of the Circuit Court of Roane County;
and CHRISTIE SIEGEL, Individually and as Successor-In-Interest to the Estate of Jordan
Siegel and Ashley Siegel, deceased; MARC SIEGEL, Individually and as Successor-In-
Interest to the Estate of Jordan Siegel and Ashley Siegel, deceased; DAWN SIEGEL, an
Individual; ERICA FOX, an individual; CHRISTOPHER FOX, an individual;
BROOKLYN SIEGEL, by and through her Guardian MARC SIEGEL; and MADISON
OWENS, by and through her Guardian, DAWN SIEGEL,
Respondents
Petition for Writ of Prohibition
WRIT GRANTED AS MOULDED
Submitted: January 14, 2015
Filed: April 9, 2015
Gregory G. Garre, Esq. T. Keith Gould, Esq.
Michael E. Bern, Esq. The Miley Legal Group
Latham & Watkins LLP Clarksburg, West Virginia
Washington, District of Columbia Counsel for the Respondents
Christie Siegel, the Estate of
Michael Bonasso, Esq. Jordan Siegel and Ashley Siegel,
William Hanna, Esq. Marc Siegel, Dawn Siegel, Erica
Bradley J. Schmalzer, Esq. Fox, Christopher Fox, Brooklyn
Flaherty Sensabaugh Bonasso, PLLC Siegel and Madison Owens
Charleston, West Virginia
Counsel for the Petitioners Ford
Motor Company and Jack Garrett Ford
CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE BENJAMIN and JUSTICE LOUGHRY dissent and reserve the right to file
separate opinions.
JUSTICE KETCHUM concurs and reserves the right to file a separate opinion.
ii
SYLLABUS BY THE COURT
1. “‘Prohibition will lie to prohibit a judge from exceeding his legitimate
powers.’ Syl. Pt. 2, State ex rel. Winter v. MacQueen, 161 W. Va. 30, 239 S.E.2d 660(1977).” Syl. Pt. 1, State ex rel. Mylan, Inc. v. Zakaib, 227 W. Va. 641, 713 S.E.2d 356(2011).
2. “By using the term “shall,” the Legislature has mandated that courts
must consider the eight factors enumerated in West Virginia Code § 56-1-1a (Supp.2010),
as a means of determining whether, in the interest of justice and for the convenience of the
parties, a claim or action should be stayed or dismissed on the basis of forum non
conveniens.” Syl. Pt. 5, State ex rel. Mylan, Inc. v. Zakaib, 227 W. Va. 641, 713 S.E.2d 356(2011).
3. “In all decisions on motions made pursuant to West Virginia Code § 56­
1-1a (Supp.2010), courts must state findings of fact and conclusions of law as to each of the
eight factors listed for consideration under subsection (a) of that statute.” Syl. Pt. 6, State ex
rel. Mylan, Inc. v. Zakaib, 227 W. Va. 641, 713 S.E.2d 356 (2011).
i
Workman, Chief Justice:
This original jurisdiction action is before the Court upon a petition for writ of
prohibition brought by Ford Motor Company (“Ford”) and Jack Garrett Ford, Inc., (both
entities referred to collectively as “the Petitioners”) seeking to prohibit the Honorable David
W. Nibert, Judge of the Circuit Court of Roane County, West Virginia, from taking any
further action in the case below and from denying the Petitioners’ motion to dismiss the case
based upon forum non conveniens. Having considered the parties’ briefs and arguments and
the appendix record, we find that the circuit court failed to make findings of fact and
conclusions of law as required by West Virginia Code § 56-1-1a (2012). Therefore, the
Court grants the writ as moulded and remands the case for further action consistent with this
opinion.
I. Factual and Procedural Background
According to the allegations in the Complaint, in 1999, Jack Garrett Ford, Inc.,
sold a 1999 model Ford Expedition to an unidentified individual from the dealership located
in Spencer, West Virginia. The vehicle was designed by Ford in Dearborn, Michigan, and
manufactured by Ford in Wayne, Michigan.1 Moreover, Ford has its principal place of
business in Michigan. In 2006, years after the initial sale, the Expedition was sold to a
1
It is significant that Jack Garrett Ford, Inc., has consented to jurisdiction in Michigan.
2
Michigan resident not identified in the litigation. Approximately two years later, in 2008,
the vehicle again was sold in the State of Michigan by a Michigan resident to the
Respondents,2 who were the plaintiffs below 3 and also Michigan residents.
On June 22, 2012, an accident occurred in which the subject Expedition, which
was being operated by the Respondent Dawn Siegel, rolled-over multiple times after
swerving to avoid hitting a Honda Odyssey that had made contact with the Expedition. The
operator of the Honda Odyssey fled the scene in the vehicle. Neither the Honda Odyssey,
nor its driver, were located until days later. At the time of the accident, Mrs. Siegel and her
six children and step-children were in the Expedition. Two children were killed in the
accident. The other family members suffered serious injuries to heads, arms and legs, as well
as significant bruising.
On February 12, 2014, the Respondents filed a complaint in the Circuit Court
2
For purposes of this opinion, the Respondents do not include the circuit judge named
in this action before the Court.
3
The Respondents include Christie Siegel, individually and as successor-in-interest
to the estate of Jordan Siegel and Ashley Siegel, deceased; Marc Siegel, individually and as
successor-in-interest to the estate of Jordan Siegel and Ashley Siegel, deceased; Dawn
Siegel, an individual, Erica Fox, an individual, Christopher Fox, an individual; Brooklyn
Siegel, by and through her guardian Marc Siegel; and Madison Owens, by and through her
guardian, Dawn Siegel.
3
of Roane County, West Virginia, asserting claims against Ford, Jack Garrett Ford, Inc.,
Kristin Kae Boss, the Ohio driver of the Honda Odyssey that struck the Respondents’ car,
and Prestige Delivery Systems (“Prestige”), Ms. Boss’s employer. In the Complaint, the
Respondents allege various torts against Ford and/or Jack Garrett Ford, Inc., including strict
products liability based upon manufacturing and design defects in the Expedition.
Ford, Jack Garrett Ford, Inc., and Prestige jointly moved to dismiss the civil
action based upon the doctrine of forum non conveniens as set forth in West Virginia Code
§ 56-1-1a. The Petitioners, analyzing each of the eight factors set forth in the statute, argued
that Michigan was the correct forum for the litigation and that West Virginia had “little to
no nexus to the subject matter in controversy in this case.”
The Respondents then bifurcated their claims by filing a separate complaint
against Prestige and Ms. Boss in the State of Ohio, while maintaining this action against
Ford and Jack Garrett Ford, Inc., in West Virginia. The Respondents voluntarily dismissed
Prestige and Ms. Boss from the instant action.4
4
The parties have informed the Court that since the Respondents’ filing of a complaint
against Prestige and Ms. Boss in Ohio, the lower court granted Prestige’s and Ms. Boss’s
motion to dismiss that action based upon forum non conveniens. See Christie Siegel, et al.
v. Kristin Kae Boss, et al., Case No. CV-14-826326 (Ct. Com. Pl. Cuyahoga Cnty. Aug. 21,
2014). The Respondents are appealing that dismissal in Ohio.
4
On May 2, 2014, the Respondents filed their opposition to the Petitioners’
motion to dismiss, relying upon syllabus point two of Abbott v. Owens-Corning Fiberglass
Corp., 191 W. Va. 198, 444 S.E.2d 285 (1994), which provides:
“The common law doctrine of forum non conveniens is
available to courts of record in this State. The doctrine accords
a preference to the plaintiff’s choice of forum, but the defendant
may overcome this preference by demonstrating that the forum
has only a slight nexus to the subject matter of the suit and that
another available forum exists which would enable the case to
be tried substantially more inexpensively and expeditiously. To
the extent that Gardner v. Norfolk & Western Railway Co.,
[179] W. Va. [724], 372 S.E.2d 786 (1988), cert. denied, 489
U.S. 1016, 109 S. Ct. 1132, 103 L.Ed. 2d 193, (1989), declined
to apply this doctrine, it is overruled.” Syl. pt. 3, Norfolk and
Western Ry. Co. v. Tsapis, 184 W. Va. 231, 400 S.E.2d 239(1990).
(Some emphasis added). Based upon the foregoing language in Abbott, the Respondents
maintained that “the West Virginia Supreme Court has required a moving party to offer
specific evidence that another forum is substantially more convenient and inexpensive.”
Further, relying upon the holding in Abbott that “[i]n order for this Court to review a trial
court’s decision regarding the application of the doctrine of forum non conveniens, it is
necessary for the trial court to provide a record in sufficient detail which will show the basis
of its decision[,]” 191 W. Va. at 204, 444 S.E.2d at 291, the Respondents argued that the
Petitioners offered “[m]ere allegations and conclusions,” as support for their motion and
failed to support it with any evidence.
5
The circuit court conducted a hearing on the Petitioners’ motion on May 8,
2014. At the conclusion of the hearing, the court requested that the parties submit proposed
orders. On July 3, 2014, the circuit court entered the Respondents’ proposed order denying
the Petitioners’ motion to dismiss. Specifically, the circuit court found “the reasoning of
Abbott persuasive” and “controlling.” Thus, applying the law enunciated in Abbott, the court
determined that the Petitioners not only “failed to provide any substantive evidence that West
Virginia was substantially more inconvenient and expensive than the alternate forum[,]” but
also “merely relied on conclusory allegations in their pleading.” The circuit court further
found that the Petitioners failed: 1) “to identify a single witness who believed West Virginia
is unfairly burdensome or a witness who refuses to appear in West Virginia[;]” 2) to show
that they were “substantially limited in their ability to present evidence or witnesses” in West
Virginia; 3) “to identify any additional legal expenses incurred by litigating this case in West
Virginia[;]” and 4) to “provide any evidence supporting the arguments that this case would
burden West Virginia courts.” The circuit court also found that
with respect to remedies available in Michigan, this Court is
mindful that Michigan enforces a statute of repose. Michigan’s
statute of repose requires a plaintiff to prove their case without
the benefit of presumptions, like strict liability, if the product
has been in use longer than 10 years. The subject vehicle is a
1999 Ford Expedition so Michigan’s statute of repose would
apply. While not necessarily determinative, Michigan’s statute
of repose is inconsistent with the principles underlying West
Virginia’s doctrine of strict products liability, which is critical
in protecting West Virginia consumers.
Lastly, the circuit court summarily stated in its order that “in evaluating the factors described
6
in § 56-1-1a, this Court finds that Plaintiffs choice of forum in West Virginia is appropriate
as well.” There was no specific evaluation of the eight enumerated factors set forth in West
Virginia § 56-1-1a.
II. Standard of Review
This Court has consistently held that “‘[p]rohibition will lie to prohibit a judge
from exceeding his legitimate powers.’ Syl. Pt. 2, State ex rel. Winter v. MacQueen, 161 W.
Va. 30, 239 S.E.2d 660 (1977).” Syl. Pt. 1, State ex rel. Mylan, Inc. v. Zakaib, 227 W. Va.
641, 713 S.E.2d 356 (2011). In Mylan, in discussing the standard of review applicable to
venue disputes, we stated that
[i]n the context of disputes over venue, such as dismissal for
forum non conveniens, this Court has previously held that a writ
of prohibition is an appropriate remedy “to resolve the issue of
where venue for a civil action lies,” because “the issue of venue
[has] the potential of placing a litigant at an unwarranted
disadvantage in a pending action and [ ] relief by appeal would
be inadequate.” State ex rel. Huffman v. Stephens, 206 W. Va.
501, 503, 526 S.E.2d 23, 25 (1999); see also State ex rel. Riffle
v. Ranson, 195 W. Va. 121, 124, 464 S.E.2d 763, 766 (1995)
(“In recent times in every case that has had a substantial legal
issue regarding venue, we have recognized the importance of
resolving the issue in an original action.”).
This Court typically reviews a circuit court’s decision on
venue, including forum non conveniens, under an abuse of
discretion standard. See Syl. Pt. 3, Cannelton Industries, Inc. v.
Aetna Cas. & Sur. Co. of Am., 194 W. Va. 186, 460 S.E.2d 1(1994) (“A circuit court’s decision to invoke the doctrine of
forum non conveniens will not be reversed unless it is found that
the circuit court abused its discretion.”); Nezan v. Aries Techs.,
7
Inc., 226 W. Va. 631, 637, 704 S.E.2d 631, 637 (2010) (“On the
issue of forum non conveniens, we have held that the standard
of review of this Court is an abuse of discretion.”). The Mylan
Petitioners, however, contend that this Court’s review should be
de novo because the circuit judges misapplied and/or
misinterpreted the controlling statute. In Riffle, this Court
explained:
The normal deference accorded to a circuit court’s
decision to transfer a case, Syl. pt. 3, Cannelton
Industries, Inc. v. Aetna Casualty & Surety Co.,
194 W. Va. 186, 460 S.E.2d 1 (1994) (“[a] circuit
court’s decision to invoke the doctrine of forum
non conveniens will not be reversed unless it is
found that the circuit court abused its discretion”),
does not apply where the law is misapplied or
where the decision to transfer hinges on an
interpretation of a controlling statute. See
Mildred L.M. v. John O.F., 192 W. Va. 345, 350,
452 S.E.2d 436, 441 (1994) (“[t]his Court reviews
questions of statutory interpretation de novo.”).
Under these circumstances, our review is plenary.
Mylan, 227 W. Va. at 645, 713 S.E.2d at 360-61. In the instant matter, because the
Petitioners ask this Court to decide whether the circuit court erroneously based its decision
on the Abbott case, rather than the forum non conveniens statute, West Virginia Code § 56-1­
1a, our review is de novo. See Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459
S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of review.”).
III. Discussion
The issue before the Court is whether the circuit court failed to consider the
8
statutory factors set forth in West Virginia Code § 56-1-1a in determining whether to dismiss
the case for forum non conveniens. The Petitioners maintain that the circuit court failed to
heed this Court’s precedent requiring it to consider all the statutory forum non conveniens
factors, misapplied the factors it did consider, and overlooked the fact that this case lacks any
meaningful connection to West Virginia. Conversely, the Respondents maintain that
“[b]ecause the Circuit Court considered and applied all of the W. Va. Code § 56-1-1a factors
as required by State ex rel. Mylan v. Zakaib, 227 W. Va. 641, 713 S.E.2d 356 (2011)[,] it did
not exceed its authority . . . .”
At the heart of this case is West Virginia’s forum non conveniens statute, West
Virginia Code § 56-1-1a, which provides:
(a) In any civil action if a court of this state, upon a
timely written motion of a party, finds that in the interest of
justice and for the convenience of the parties a claim or action
would be more properly heard in a forum outside this state, the
court shall decline to exercise jurisdiction under the doctrine of
forum non conveniens and shall stay or dismiss the claim or
action, or dismiss any plaintiff: Provided, That the plaintiff’s
choice of a forum is entitled to great deference, but this
preference may be diminished when the plaintiff is a nonresident
and the cause of action did not arise in this State. In
determining whether to grant a motion to stay or dismiss an
action, or dismiss any plaintiff under the doctrine of forum non
conveniens, the court shall consider:
(1) Whether an alternate forum exists in which the claim
or action may be tried;
(2) Whether maintenance of the claim or action in the
courts of this State would work a substantial injustice to the
moving party;
9
(3) Whether the alternate forum, as a result of the
submission of the parties or otherwise, can exercise jurisdiction
over all the defendants properly joined to the plaintiff’s claim;
(4) The state in which the plaintiff(s) reside;
(5) The state in which the cause of action accrued;
(6) Whether the balance of the private interests of the
parties and the public interest of the State predominate in favor
of the claim or action being brought in an alternate forum, which
shall include consideration of the extent to which an injury or
death resulted from acts or omissions that occurred in this State.
Factors relevant to the private interests of the parties include,
but are not limited to, the relative ease of access to sources of
proof; availability of compulsory process for attendance of
unwilling witnesses; the cost of obtaining attendance of willing
witnesses; possibility of a view of the premises, if a view would
be appropriate to the action; and all other practical problems that
make trial of a case easy, expeditious and inexpensive. Factors
relevant to the public interest of the State include, but are not
limited to, the administrative difficulties flowing from court
congestion; the interest in having localized controversies
decided within the State; the avoidance of unnecessary problems
in conflict of laws, or in the application of foreign law; and the
unfairness of burdening citizens in an unrelated forum with jury
duty;
(7) Whether not granting the stay or dismissal would
result in unreasonable duplication or proliferation of litigation;
and
(8) Whether the alternate forum provides a remedy.
....
(e) A court that grants a motion to stay or dismiss an
action pursuant to this section shall set forth specific findings of
fact and conclusions of law.
(Emphasis added).
This Court has previously examined the effect that the foregoing statute has on
10
all cases involving the doctrine of forum non conveniens. In syllabus points five and six of
Mylan, we held that:
By using the term “shall,” the Legislature has mandated
that courts must consider the eight factors enumerated in West
Virginia Code § 56-1-1a (Supp.2010), as a means of
determining whether, in the interest of justice and for the
convenience of the parties, a claim or action should be stayed or
dismissed on the basis of forum non conveniens.
In all decisions on motions made pursuant to West
Virginia Code § 56-1-1a (Supp.2010), courts must state findings
of fact and conclusions of law as to each of the eight factors
listed for consideration under subsection (a) of that statute.
227 W. Va. at 643, 713 S.E.2d at 358, Syl. Pt. 6 (emphasis added).
While the circuit court mentions West Virginia Code § 56-1-1a in its order, it
specifically finds that Abbott is still controlling. Further, the circuit court fails to state
“findings of fact and conclusions of law as to the eight factors” listed in the statute, despite
both the Legislature and this Court mandating that such findings of fact and conclusions of
law be expressly made when determining whether forum non conveniens is applicable. See
id.; 227 W. Va. at 642-43, 713 S.E.2d at 357-58. Rather, what is gleaned from our
examination of the circuit court’s order is that it solely relied upon this Court’s decision in
Abbott, which predated both West Virginia Code § 56-1-1a and this Court’s decision in
Mylan.
11
Given the circuit court’s failure to properly evaluate the Petitioners’ motion to
dismiss in a manner that comports with West Virginia Code § 56-1-1a, upon remand, the
circuit court should re-evaluate forum non conveniens in the manner set forth in the statute,
as well as in this Court’s decisions in Mace v. Mylan Pharmaceuticals, Inc., 227 W. Va. 666,
714 S.E.2d 223 (2011), and Mylan. For example, regarding the first statutory factor
concerning whether an alternate forum exists, this Court held in syllabus points eight and
nine of Mace that:
Under West Virginia Code § 56-1-1a (Supp.2010),
dismissal of a claim or action on the basis of forum non
conveniens presupposes at least two forums in which the
defendant is amenable to process; the statute furnishes criteria
for choice between them. In the event that the defendant is not
amenable to process in any alternate forum, dismissal of a claim
or action under this statute would constitute error.
In considering “whether an alternate forum exists in
which the claim or action may be tried” pursuant to West
Virginia Code § 56-1-1a(a)(1) (Supp.2010), an alternate forum
is presumed to “exist” where the defendant is amenable to
process. Such presumption may be defeated, however, 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.
227 W. Va. at 668, 714 S.E.2d at 225. In the instant matter, the circuit court failed to
mention, discuss or apply the law enunciated by this Court in Mace in its determination of
whether an alternative forum existed.
12
Further, in the instant matter, the circuit court determined that “Michigan
enforces a statute of repose.” It is incumbent upon us to point out that the circuit court made
this determination without any supporting legal authority to do so. In fact, according to the
appendix record, the applicable Michigan statute upon which the circuit court relies is
Michigan Compiled Laws Annotated § 600.5805(13) (LexisNexis 2004 & Supp. 2014),
which provides: “The period of limitations is 3 years for a products liability action.
However in the case of a product that has been in use for not less than 10 years, the plaintiff,
in proving a prima facie case, shall be required to do so without benefit of any presumption.”
This is not a statute of repose, but a statute of limitations. As the Michigan Court of Appeals
stated in Frankenmuth Mutual Insurance Co. v. Marlette Homes, Inc., 573 N.W.2d 611(Mich. 1998), when presented with Michigan’s statute of repose,5
5
Michigan’s statute of repose, Michigan Compiled Laws Annotated § 600.5839(1)
(LexisNexis Supp. 2014), provides as follows:
(1) A person shall not maintain an action to recover
damages for injury to property, real or personal, or for bodily
injury or wrongful death, arising out of the defective or unsafe
condition of an improvement to real property, or an action for
contribution or indemnity for damages sustained as a result of
such injury, against any state licensed architect or professional
engineer performing or furnishing the design or supervision of
construction of the improvement, or against any contractor
making the improvement, unless the action is commenced
within either of the following periods:
(a) Six years after the time of occupancy of the
completed improvement, use, or acceptance of the improvement.
(b) If the defect constitutes the proximate cause of
(continued...)
13
[t]he Court of Appeals explained how such a measure [referring
to Michigan’s statute of repose] differs from a statute of
limitation:
A statute of repose limits the liability of a party by
setting a fixed time after the sale or first use of an
item beyond which the party will not be held
liable for defects in it or injury or damage arising
from it. Unlike a statute of limitations, a statute
of repose may bar a claim before an injury or
damage occurs. O’Brien v. Hazlet & Erdal, 410
Mich. 1, 15, 299 N.W.2d 336 (1980); Oole v.
Oosting, 82 Mich. App. 291, 298-300, 266
N.W.2d 795 (1978).
573 N.W.2d at 612 n.3.
Upon remand, when giving due consideration of West Virginia Code §
5
(...continued)
the injury or damage for which the action is brought and is the
result of gross negligence on the part of the contractor or
licensed architect or professional engineer, 1 year after the
defect is discovered or should have been discovered. However,
an action to which this subdivision applies shall not be
maintained more than 10 years after the time of occupancy of
the completed improvement, use, or acceptance of the
improvement.
(2) A person shall not maintain an action to recover
damages based on error or negligence of a licensed professional
surveyor in the preparation of a survey or report more than 6
years after the survey or report is recorded or is delivered to the
person for whom it was made or the person’s agent.
(Emphasis added).
14
56-1-1a(a)(1) and (8), regarding whether a remedy exists in Michigan,6 we direct the circuit
court’s attention to the Mylan decision, wherein we stated:
[T]he Supreme Court in Piper Aircraft [Co. v. Reyno, 454 U.S.
235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)] acknowledged that,
in rare instances, a change in substantive law in an alternate
forum may be so significant that it would, in effect, eliminate
the plaintiff’s chance of recovery in the case. In such instances,
the law of the alternate forum cannot be ignored. Thus, the
United States Supreme Court stated that “if the remedy provided
by the alternative forum is so clearly inadequate or
unsatisfactory that it is no remedy at all, the unfavorable change
in law may be given substantial weight. . . .” Id. at 254, 102
S.Ct. 252. Importantly, however, the facts of Piper Aircraft
6
The Respondents argue that the Michigan statute is a statute of repose and that
because of the Michigan statute “the substantive difference between the States is so great that
Michigan law would abrogate Plaintiffs’ strict liability in tort case.” To support their
argument, the Respondents ask this Court to adopt the reasoning of the Supreme Court of
New Jersey in Gantes v. Kason Corp., 679 A.2d 106 (N.J. 1996), wherein the representatives
of decedent’s estate filed a complaint alleging, inter alia, strict liability in New Jersey, where
the manufacturer of a piece of machinery was located. The accident causing the decedent’s
death occurred in Georgia. The action was filed in New Jersey was because Georgia had a
statute of repose that would have barred the action, while New Jersey had a statute of
limitations that would allow the action to go forward. The primary issue before the New
Jersey court centered upon choice of laws and the New Jersey court ultimately determined
that it would apply its statute of limitations, which allowed the case to proceed. On the issue
of forum non conveniens, the court found that the issue was not properly before it; however,
it also noted that “dismissal pursuant to the doctrine of forum non conveniens cannot occur
if the transfer will result in significant hardship to the plaintiffs.” Id. at 499. In Gantes, the
New Jersey court found that “without doubt, a dismissal of this action will cause severe
hardship to plaintiff. If this action cannot proceed in New Jersey, plaintiff will be left with
no forum in which to proceed and will be denied recovery altogether.” Id.
Such is not the case in the instant matter before the Court. Unlike the Gantes
decision, Michigan’s law does not act as a bar to the Respondents’ action in Michigan. It
only eliminates a presumption because more than ten years has passed. Accordingly, we
decline to adopt the law enunciated by the New Jersey court in Gantes.
15
made clear that the remedy offered by an alternate forum is not
rendered inadequate simply because that forum does not
recognize one of several claims asserted by a plaintiff. Id. at
255, 102 S. Ct. 252 (“Although the relatives of the decedents
may not be able to rely on a strict liability theory, and although
their potential damages award may be smaller, there is no danger
that they will be deprived of any remedy or treated unfairly.”)
Mylan, 227 W. Va. at 647 n.5, 713 S.E.2d at 362 n.5 (quoting, in part, Piper Aircraft, 454
U.S. at 254-55). In the instant action, the circuit court found that “[w]hile not necessarily
determinative, Michigan’s statute of repose is inconsistent with the principles underlying
West Virginia’s doctrine of strict products liability.” Being “inconsistent with principles”
of West Virginia law, however, is not enough under our law. Rather, the circuit court must
examine whether the remedy under Michigan law “is so clearly inadequate or unsatisfactory
that it is no remedy at all.” Mace, 227 W. Va. at 668, 714 S.E.2d at 225, at Syl. Pt. 9, in part.
IV. Conclusion
Based upon the foregoing, this Court issues the requested writ as moulded.
The action is remanded for further consideration of the Petitioners’ motion to dismiss for
forum non conveniens. On remand, the circuit court is instructed to consider the law
enunciated by this Court in Mace and Mylan and to set forth clear findings of fact and
conclusions of law as to each of the eight factors listed in West Virginia Code § 56-1-1a
whether the circuit court ultimately grants or denies the motion to dismiss.
Writ granted as moulded.
16