Night Vision Case Down Under - Civil Procedure Doctrine Suffering from "Rigor Mortis" Comes Alive

November 2, 2001
Reprinted with permission from the Connecticut Law Tribune, November 2, 2001, by Thomas Scheffey

Eleven years ago the Connecticut Supreme Court ruled that the legal world was shrinking.

Due to technological advances of jets, videotapes and satellite transmissions that aided long-distance litigation, the defendant-friendly doctrine of forum non conveniens would seldom counter a plaintiff's court of choice. It allowed the family of a Canadian woman to sue Stamford-based Playtex in a toxic shock case, despite the company's protests that litigation would be more convenient in Canada, where the woman died.

The world may be shrinking, but it's still not small. On October 30 the court showed a new willingness to protectively turn away foreign plaintiffs at the courthouse door, in a decision that wins praise from corporate defense lawyers and industry groups.

The case, Durkin v. Intevac, arose from a military helicopter collision in Queensland, Australia that killed 18 members of an army air regiment and injured five others in 1996. Six helicopters were engaged in an anti-terrorist exercise in preparation for the 2000 Olympics in Sydney.

The plaintiffs, representing the dead and injured, retained the Bridgeport firm of Koskoff Koskoff, a firm with a history of multi-million-dollar plaintiffs' wins.

They sued seven corporations, including four based in Connecticut, alleging that manufacturing flaws in night vision goggles, helmets and helicopters contributed to the disaster.

At the trial court level, Stamford Superior Court Judge Frank H. D'Andrea, Jr., considered the plaintiffs' argument that Australia's lack of a contingent-fee system makes it likely that their legal costs would exceed their realistic potential recovery if they won.

That didn't rule out Australia as an adequate forum. In fact, from the standpoint of the burden on Connecticut courts and juries, it would be better to have the trial in Australia. But D'Andrea concluded that the presumption in favor of allowing the plaintiffs' choice of forum carried the day, especially in light of technological advances.

He quoted other trial courts' conclusions that, after the Playtex case, it is difficult to imagine that the granting of a forum non conveniens motion would ever be sustained by the Connecticut Supreme Court, in light of its reference to "modern technological innovations such as jet airplanes, satellites and videotaped depositions."

Different World

But the high court did the unimagined and reversed D'Andrea, ruling 6-1 that he abused his discretion in refusing to find that Connecticut was an inconvenient forum for the U.S. corporate defendants.

Peter T. Zarella, writing for the majority, weighed the parties' access to sources of proof, their ability to compel witnesses and their ability to view the accident scene. The majority placed weight on the ability to examine Australian military witnesses and the terrain of the crash.

An exhaustive board of inquiry by the Australian army interviewed 144 witnesses and produced a 7,000 page record. It concluded that the primary factors in the crash were a lack of leadership and organization-factors that the majority noted are findings against the interest of the Australian army, and all the more credible.

The majority concluded "that the trial court afforded too much deference to the plaintiff's preference and failed to balance the combination of private interest factors favoring dismissal against the plaintiffs' preference."

Mark R. Kravitz, of New Haven's Wiggin & Dana, argued the case at the high court. He commented, "The importance of this decision is that forum non conveniens is alive and well in Connecticut -- and a lot of other jurisdictions."

In briefs prepared by Wiggin's Jeffrey R. Babbin, Victor A. Bolden and Patrick J. Corcoran, the defendants argued that nationwide, recent attempts to put an end to the doctrine of forum non conveniens have failed. Texas, Kravitz noted, abolished the doctrine in a court decision only to have it specifically re-instated by the legislature.

"Florida as well, weakened its forum non doctrine, and ended up with literally a flood of cases from non-U.S. residents suing people in Florida, and New York has stemmed the flood of cases into its court system through re-invigorating the forum non doctrine," Kravitz said.

Unique Case

Plaintiffs' lawyer Vincent Musto, of the Koskoff firm, said the court's decision was disappointing, but he said it had unique facts that kept it from disturbing the Picketts v. Playtex doctrine. That 1990 case was a victory for Rosalind Koskoff, who was co-counsel with Musto in the Intevac case.

"But the court swung the pendulum in favor of the defendants," said Musto. "The discovery that would allow us the best chance of proceeding with the case was here."

The dissent by Justice Joette Katz defended D'Andrea's balancing of factors, and pointed out that the case is focused on the design and manufacture of night vision goggles and helicopters designed, made and sold in or near Connecticut.