SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO S . A

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A

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RAYMOND REBBECK and SHELIA MARY REBBECK,
Plaintiffs

- Appellants,

v. HONEYWELL INTERNATIONAL, INC., f/k/a Allied Signal, Inc., as Successor in the Interest to the Bendix Corporation,
Defendant

- Respondent.

____________________________ DAVID HARVEY and SHARON HARVEY,
Plaintiff s
- Appellant s ,

v. HONEYWELL INTERNATIONAL, INC., f/k/a Allied Signal , Inc., as Successor in the Interest to the Bendix Corporation, NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

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Defendant

- Respondent.

___ ___________________________ ROGER WILLIAMS and SARAH BEAUCHAMP

- WILLIAMS,
Plaintiff s
- Appellant s ,

v. HONEYWELL INTERNATIONAL, INC., f/k/a Allied Signal , Inc., as Successor in the Interest to the Bendix Corporation,
Defendant

- Respondent.

_________________________ _____ LESLIE JAMES GARDNER,
Plaintiff

- Appellant,

v. HONEYWELL INTERNATIONAL, INC., f/k/a Allied Signal , Inc., as Successor in the Interest to the Bendix Corporation,
Defendant

- Respondent.

______________________________

Argued January 23, 2019

– Decided March 5 , 2019 Before Judges Hoffman, Suter and Firko.3 A

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- 16T1 On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No s . L

- 4286

- 16, L

- 6318

- 15, L

- 2314

- 16 and L

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- 16.
Daniel J. Woodard argued the cause for appellants Raymond and Sheila Mary Rebbeck in A

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- 16, David and Sharon Harvey in A

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- 16, and Roger Williams and Sarah Beauchamp

- Williams in A

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- 16 ( Szaferman, Lakind, Blumstein, Blader , PC, and Brendan J. Tully (Phillips & Paolicelli) of the New York bar, admitted pro hac vice, attorneys; Robert E. Lytle , on the briefs ).
Dan iel J. Woodard argued the cause for appellant Leslie James Gardner in A

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- 17 (Phillips & Paolicell i , LLP, attorneys; Daniel J. Woodard, on the briefs).
John C. Garde argued the cause for respondents (McCarter & English, LLP, and Gibbons PC, attorneys; John C. Garde and Ethan D. Stein , of counsel; Jean P. Patterson and Elizabeth K. Monahan, on the brief).
PER CURIAM In this appeal, we address the dismissal of the asbestos

- related product liability claims of now
- deceased residents of the United Kingdom (U.K.) , p laintiffs 1 Raymond Rebbeck, David Harvey, Roger Williams, and Leslie James Gardner, against defendant Honeywell International, Inc. (Honeywell) on the

1 The spouses of Rebbeck, Harvey, and Williams also sue per quod. We previously consolidated the Rebbeck , Harvey , and Williams cases for purposes of this opinion. Since the Gardner appeal was heard back

- to

- back on the same calendar, we consolidate it for purposes of this opinion as well.4 A

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ground of forum non conveniens . After careful review, we affirm the Law
Division orders of dismissal in each case, but remand for the entry of a modified
order in the Gardner case to mirror the dismissal orders in the other cases.
The central f acts are not in dispute. Plaintiffs were lif etime residents of the U.K., where they worked as automob ile mechanics. Part of their jobs entailed installing replacement brakes

– plaintiffs contend they predominately
installed Bendix Corporation brakes, which at the time contained asbestos. Plaintiffs claim that the asbestos dust they inhaled from those br akes caused them to develop mesothelioma. Between October 2015 and November 2016, p laintiffs filed their complaints against Honeywell as the successor in interest to Bendix Corporation. 2 Incorporated in Delaware, Honeywell maintains its principal place of business in New Jersey. Plaintiffs' complaints alleged breach of express and implied warranties, the marketing of an ultra

- hazardous product, breach of the duty to warn, and that Honeywell "willfully . . . with[e]ld information from [p]laintiff[s] . . . and the gener al public. "

2 Bendix merged into Allied Corporation, which merged into Allied Signal, Inc., which merged into Honeywell, Inc.5 A

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The parties conducted limited d iscovery, including the depositions of plaintiffs before they died

. Honeywell then filed motions to dismiss based on
the doctrine of forum non conveniens . The parties submitted voluminous factual materials in support of and in opposition to the motions, including affidavits
from asbestos litigation experts in the U.K. : Patrick Gerard Walsh and Harry David Glyn Steinberg, on behalf of plaintiffs; and Nicholas Aidin Pargeter on
behalf of Honeywell

. A fter hearing oral argument , Judge Jane B. Cantor issued an oral opinion granting Honeywell' s motion to dismiss in the Rebbeck , Harvey , and Williams

cases based on forum non conveniens. After hearing oral argument in the
Gardner case, Judge Ana C. Viscomi granted Honeywell's motion to dismiss,
also based o n forum non conveniens. She issued a written opinion setting forth
the reasons for her decision. These appeals followed.
Forum non conveniens is a n equitable doctrine, and its application is left to the sound discretion of the trial judge. Kurzke v. Nissan Motor Corp. in
U.S.A. , 164 N.J. 159, 165 (2000). Accordingly, we will not intervene absent a
clear abuse of discretion. Civic S

. Factors Corp. v. Bonat , 65 N.J. 329, 332 (1974). The essence of forum non conveniens is that a court may decline jurisdiction "whenever the ends of justice indicate a trial in the forum selected6 A

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by the plaintiff would be inappropriate." D'Agostino v. Johnson & Johnson,
Inc. , 225 N.J. Super. 250, 259 (App. Div. 1988)

. The d efendant, as the entity invoking the doctrine of forum non conveniens, bears the burden of establishing that New Jersey is not a convenient forum for this litigation. [ Piper Airc raft Co. v. Reyno , 454 U.S. 235, 255 (1981).] However, less deference is accorded to [the] plaintiffs' forum choice in this case than would normally be accorded because of [the] plaintiffs' residence in the U.K., not in this State. Id. at 255

- 56. When t he home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that t he trial is convenient, a foreign plaintiff's choice deserves less deference. Ibid. [ In re Vioxx Litig

. , 395 N.J. Super. 358, 364

- 65 (App. Div. 2007).] The first inquiry by the court on a dismissal application based on forum
non conveniens is whether t here is an adequate alternative forum for the case where the defendant is amenable to service of process and the subject matter of the dispute may be litigated. Varo v. Owens

- Illinois, Inc. , 400 N.J. Super. 508,
519

- 20 (App. Div. 2008). Assuming a proper alternative forum, the court must consider and weigh both public and private interest factors to determine whether7 A

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the plaintiff's choice of forum is appropriate for the matters in issue. Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 508

- 09 (1947)

. The publi c interest factors are as follows: (1) the administrative difficulties which follow from having litigation "pile up in congested centers" rather than being handled at its origin, (2) the imposition of jury duty on members of a community having no relation to the litigation, (3) the local interest in the subject matter such that affected members of the community may wish to view the trial [,] and (4) the local interest "in having localized controversies decided at home." [ Aguerre v. Schering

- Plough Corp. , 39 3 N.J. Super. 459, 474 (App. Div. 2007) (quoting Gulf Oil Corp. , 330 U.S. at 508

- 09).] The private interest factors are: (1) the relative ease of access to sources of proof, (2) the availability of compulsory process for attendance of unwilling witnesses and the cost of obtaining the attendance of willing witnesses, (3) whether a view of the premises is appropriate to the action [,] and (4) all other practical problems that make trial of the case "easy, expeditious and inexpensive," including the enforceabi lity of the ultimate judgment. [ Ibid. ] Judge Cantor stated in h er oral opinion that the U.K. i s a proper alternative forum since plaintiffs were residents of the U.K., and they have the right to bring suit against Honeywell in the U.K. She adde d that if a U.K. court should reject8 A

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plaintiffs' claim s on the basis that the U.K. does not hear product liability cases brought by claimants who used an allegedly defective product during the course
of their employment , then she would "invite these cases back." I n her written opinion, Judge Viscomi found the U.K. constitutes an adequate alternative forum because the parties agree the U.K. processes workplace asbestos litigation against claimants' employers

. Having found an adequate alternative forum, t he judges went on to address
the public and private interests. Judge Cantor stressed the administrative difficulties having the cases in New Jersey, and that the U.K "has a much greater local interest in the international impact of products [imported] int o [its] country." Applying the public interest factors, Judge Viscomi found: 1)

. . . . Middlesex is the [Multicounty Litigation] jurisdiction for asbestos cases. Presently pending are over 400 cases with approximately 10 0 [attorneys] r epresenting living mesothelioma plaintiffs. Their cases are expedited. Opening the docket to European residents who have an adequate alternative forum would delay th e disposition of United States r esidents ['] claims, particularly those who have been diag nos ed with mesothelioma. 2)

. . . . The Middlesex jurors would be asked to sit on a case involving a foreign plaintiff and a foreign defendant. The products at issue we re manufactured in Europe. 3) . . . . There would be no local interest in the Mid dlesex jurors given that both . . . plaintiff and . . . defendant's products are9 A

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- 16T1 foreign. The public interest would inure to the plaintiff's community in the [U.K.] to observe the proceeding there. And [4)] the local interest in having localized controve rsies decided at home. This factor inured to the localized interest in the [U.K.] and not Middlesex County. In addressing the private interest factors, Judge Viscomi found: 1) The relative ease of access to sources of proof rests primarily, if not excl usively in the [U.K.] Plaintiff has never been in New Jersey. Pursuing a product liability claim would require extensive discovery process in the [U.K.] as to alternate exposure and medical treatment. 2) . . . . All of the witnesses, with the exceptio n of perhaps some, if any, corporate witnesses are in the [U.K.] Would they all come to the United State s : Would the court be able to secure their attendance? 3) Whether a view of the premises is appropriate to the action . . . . generally does not apply in asbestos litigation. 4) . . . . This court would have to apply [U.K.] law and instruct the jury as to [U.K.] law.
H owever, she declined to dismiss Gardner 's complaint without prejudice , instead entering a "with prejudice" dismissal. Contrary to plaintiffs' arguments on appeal, we find no clear showing of an abuse of discretion by either trial judge . There is no suggestion that the U.K. would not p rovide a proper forum to adjudicate this matter, particularly via claims against plain tiffs' former emp loyers . Plaintiff s did not establish that their
claims cannot be filed against Honeywell in the U.K ., conceding that such claims are "technically possible," although with "practical impediments."10 A

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Honeywell 's expert explained that bringi ng a suit such as plaintiffs' against a former employer is more common than filing against the product manufacturer, as

the level of damages which a plaintiff will receive is the same whether the claim is brought in [employer liability], public liability [, ] or product liability. The principle of compensatory damages [in the U.K.] mandates that a claimant will be no better or worse off depending upon which cause of action his claim is based. Simply put[,] once a plaintiff in the [ U

. K .] has been compensated by an employer, the plaintiff cannot successfully make an additional claim against a manufacturer[,] because the claimant would be seeking damages for the same harm[,] and is not entitled to double compensation. Honeywell 's expert went on to explain the additional costs and financial risks
that claimant s such as plaintiffs would incur while suing a product manufacturer
such as Honeywell , as opposed to their employer s . The additional cost and risk,
combined with the availability of essentially the same remedy against employers , explain why it is more common and practical for U.K. claimants to sue their employers as opposed to the product manufacturer; however, this reality does not make the U.K. an inadequate alternative forum. As we previously hel d:

[W]e have difficulty accepting the position of a group of residents of the U.K. that perceived inadequacies in the tort and damages laws and the rules for funding and11 A

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- 16T1 cost allocation of their countries of residence entitle them to seek justice in New Je rsey where the law and fee arrangements are more favorable. By this argument, plaintiffs essentially contend that the U.K. provides an inadequate forum for the resolution of the disputes of the English and Welsh living within its borders. We do not regar d the claimed inadequacies of one country's system of funding suits and allocating costs as a ticket to relief elsewhere, but rather, as a subject for legislative or court reform, should such be warranted. [ In re Vioxx Litig

. , 395 N.J. Super. at 373

- 74.] We are further satisfied there was no clear showing of an abuse of
discre tion regarding either judge's evaluation of the private and public interest
factors. The case is "localized" in the U.K., not New Jersey, as all of the alleged
claims arose from employment in the U.K. , where most witnesses in the cases
reside . We also acknowledge Judge Viscomi's summary of the extent of asbestos litigation currently pending in Middlesex County, and the potential floodgates that could open if we begin importing ca ses from European countries with adequate forums, and the effect that would have on our courts and the
claims of our residents . Since the public factors are sufficient to sustain a forum non conveniens application, we need not consider the private factors

. See i d. at
379

- 80.12 A

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Lastly, we agree with Judge Cantor's view that this matter should return to New Jersey if the U.K. should decline to accept jurisd iction over plaintiffs'
claims. Such a conditional order of dismissal without prejudice was correctly
entered in the Rebbeck , Harvey , and Williams cases
. We conclude th e order dismissing the Gardner case should contain the same conditional language as
the order s entered in the other cases. 3
Affirmed but remanded for the entry of an amended order of dismi ssal in
the Gardner case
. We do not retain jurisdiction.

3 At oral argument, Honeywell's counsel consented to this amendment to the order dismissing the Gardner case.