            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JUDITH CONLEY, as the Natural                 )
Guardian of the Infant, JEFFREY               )
CHATZ-CONLEY,                                 )
                                              )
       Plaintiffs,                            )
                                              )
       v.                                     )    C.A. No. N16-05-166 ALR
                                              )
GLAXOSMITHKLINE, LLC                          )
                                              )
       Defendant.                             )
                                              )
                                              )
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EMMA JETT,                                     )
                                               )
        Plaintiff,                             )
                                               )
               v.                              )   C.A. No. N16-05-136 ALR
                                               )
GLAXOSMITHKLINE, LLC                           )
                                               )
        Defendant.                             )
                                               )
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ANNA BERRY, as the Natural                     )
Guardian of the Infant, AUTUMN                 )
BERRY,                                         )
                                               )
        Plaintiffs,                            )
                                               )
               v.                              )   C.A. No. N16C-05-165 ALR
                                               )
GLAXOSMITHKLINE, LLC                           )
                                               )
        Defendant.                             )
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ANGELA GASS-GILCHRIST, as                        )
the Natural Guardian of the Infant,              )
ELLA GASS-GILCHRIST,                             )
                                                 )
       Plaintiffs,                               )
                                                 )
               v.                                )    C.A. No. N16C-05-168 ALR
                                                 )
GLAXOSMITHKLINE, LLC                             )
                                                 )
       Defendant.                                )
                                                 )
----------------------------------------------

                               MEMORANDUM OPINION

                                 Submitted: August 25, 2016
                                 Decided: September 12, 2016

        Upon Defendant’s Motions to Dismiss for Forum Non Conveniens
                                  DENIED




James D. Heisman, Esq., Napoli Shkolnik LLC, Wilmington, Delaware, Mario
D‟Angelo, Esq., Bayport, New York, and Adam D. Peavy, Esq., Bailey Peavy
Bailey, Houston, Texas, Attorneys for Plaintiffs.

Brian M. Rostocki, Esq. and Diana Rabeh, Esq., Reed Smith LLP, Wilmington,
Delaware, Andrew T. Bayman, Esq., Halli D. Cohn, Esq. and Meredith B.
Redwine, Esq., King & Spalding LLP, Atlanta, Georgia, and Susan V. Vargas,
Esq., Los Angeles, California, Attorneys for Defendant.
       GlaxoSmithKline LLC (“Defendant”) has moved to dismiss each of four

separate products liability actions filed by four non-Delaware residents on the basis

of forum non conveniens.            Each Plaintiff opposes Defendant‟s motion.                The

parties‟ submissions on this issue present identical arguments and decisional

precedent. This is the Court‟s decision on Defendant‟s motions to dismiss these

actions for forum non conveniens.

                FACTUAL AND PROCEDURAL BACKGROUND

       Defendant       is    a    global    healthcare      company        that    manufactures

pharmaceuticals, vaccines, and consumer healthcare products.                      Defendant is a

Delaware limited liability company. Defendant manufactured, distributed, and

marketed the prescription drug Paxil, or paxotine hydrochloride, throughout the

United States. Paxil is an antidepressant that is used to treat depression and

anxiety disorders.

       Plaintiffs1 are four non-Delaware residents whose mothers were prescribed

Paxil during their pregnancies. Plaintiffs are citizens of Oregon, South Carolina,

and Utah. Plaintiffs allege that they have each been diagnosed with Autism

Spectrum Disorder.

       In May 2016, each Plaintiff filed a complaint against Defendant in this

Court. Plaintiffs allege that Defendant‟s negligence and misrepresentations in the

1
  The parent and legal guardians of three of the four Plaintiffs have been appointed guardians ad
litem. For ease of reference, the Court refers to the parties who have filed suit as “Plaintiffs.”
                                                1
manufacturing and marketing of Paxil directly and proximately caused Plaintiffs‟

Autism Spectrum Disorder.

                                      LEGAL STANDARD

       In order to prevail on a motion to dismiss for forum non conveniens, the

moving defendant must demonstrate that it will face “overwhelming hardship” if

litigation proceeds in Delaware.2 Where, as here, alternative forums exist but

Plaintiffs have not filed an action in another jurisdiction, this Court‟s analysis is

guided by the framework originally set forth by the Delaware Supreme Court in

General Foods Corp. v. Cryo-Maid, Inc.3 The Court must assess (1) the relative

ease of access to proof; (2) the availability of compulsory process for witnesses;

(3) the possibility of the view of the premises; (4) whether the controversy is

dependent upon application of Delaware law; (5) the pendency or nonpendency of

similar actions in another jurisdiction; and (6) all other practical problems that

would make trial of the case easy, expeditious and inexpensive.4 Plaintiffs‟ choice


2
  Martinez v. E.I. DuPont de Nemours & Co., Inc., 86 A.3d 1102, 1104 (Del. 2014) (citing Ison
v. E.I. DuPont de Nemours & Co., Inc., 729 A.2d 832, 835 (Del. 1999)).
3
  Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (Del. 1964), overruled on other
grounds by Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park , 261 A.2d 520 (Del. 1969)).
Although the Cryo-Maid factors provide the framework for the Court‟s forum non conveniens
analysis, they do not establish anything by themselves. Chrysler First Bus. Credit Corp. v. 1500
Locust Ltd. P’ship, 669 A.2d 104, 108 (Del. 1995). The key inquiry is “whether the defendant
can show through any of the factors that litigating in Delaware would „actually cause[] . . .
significant hardship and inconvenience.‟” Aveta, Inc. v. Colon, 942 A.2d 603, 609 (Del. Ch.
2008) (citing Chrysler First Bus. Credit Corp., 669 A.2d at 108).
4
  Martinez, 86 A.3d at 1104 (citing Taylor v. LSI Logic Corp., 689 A.2d 1196, 1198-99 (Del.
1997)).
                                               2
of forum is entitled to respect unless Defendant demonstrates that litigating in

Delaware is “inappropriate and inconsistent with the administration of justice.”5

                                           DISCUSSION

       Upon consideration of the Cryo-Maid factors,6 the Court finds that

Defendant has not made a particularized showing that the burden of litigating in

Delaware will result in overwhelming hardship.

       Defendant argues that the location of essential evidence and witnesses

outside of Delaware weighs heavily in favor of dismissal.                However, Delaware

courts have attributed less significance to the “access to proof” factor under the

Cryo-Maid analysis in the context of corporate and commercial disputes involving

larger, more sophisticated entities.7 Moreover, although all four cases involve

specific evidentiary differences, the majority of Plaintiffs‟ general allegations

regarding the central issue of causation are common. Therefore, the burden of

accessing necessary fact witnesses and other evidence located outside of Delaware

is attenuated,8 and does not overwhelmingly favor Defendant.



5
  Pipal Tech Ventures Private Ltd. v. MoEnange, Inc., 2015 WL 9257869, at *5 (Del. Ch. Dec.
17, 2015) (citing Martinez, 86 A.3d at 1112). See also Martinez, 86 A.3d at 1106.
6
  The third Cryo-Maid factor – the possibility of a view of the premises – is not at issue in the
instant case.
7
  See, e.g., 1 Oak Private Equity Venture Capital Ltd. v. Twitter, Inc., 2015 WL 7776758, at *8
(Del. Super. Nov. 20, 2015); Hamilton Partners, L.P. v. Englard, 11 A.3d 1180, 1213-14 (Del.
Ch. 2010); LeCroy Corp. v. Hallberg, 2009 WL 3233149, at *8 (Del. Ch. Oct. 7, 2009).
8
  See Chemtura Corp. v. Certain Underwriters at Lloyd’s, 2015 WL 5340475, at *5 (Del. Super.
Aug. 26, 2015) (citing In re Asbestos Litig., 929 A.2d 373, 384 (Del. Super. 2006)) (“Where
                                               3
       This Court disagrees with Defendant‟s contention that choice of law

principles strongly favor dismissal on the basis of forum non conveniens.

Although the parties recognize that Delaware law will likely not apply to these

disputes, Defendant fails to demonstrate that this factor constitutes undue hardship.

Delaware courts are regularly called upon to interpret and apply the laws of other

jurisdictions, and have consistently held that “the need to apply another state‟s law

will not be a substantial deterrent to conducting litigation in this state.”9

       The pendency of similar actions in other states does not suggest that

Delaware litigation will cause overwhelming hardship or inconvenience to

Defendant. In Johnson v. Smithkline Beecham Corp. et al.,10 Defendant relied

heavily on its Delaware citizenship in the context of federal diversity jurisdiction

in its successful litigation of similar products liability claims.11 The Johnson Court

found that Defendant affirmatively assumed the “debts, liabilities and duties” of its

predecessor under Delaware law upon converting from a Pennsylvania corporation

to a Delaware LLC.12 Defendant does not dispute that it is a Delaware citizen,

subject to the laws and judicial process of this state. Furthermore, Defendant


litigants are entities with substantial resources, the burden created by witnesses and evidence
located outside Delaware is „substantially attenuated.‟”).
9
  In re Asbestos Litig., 929 A.2d at 386 (quoting Sequa Corp. v. Aetna Cas. & Sur. Co., 1990 WL
123006, at *4 (Del. Super. July 13, 1990)).
10
   853 F. Supp. 2d 487 (E.D. Pa. 2012), aff’d, 724 F.3d 337 (3d Cir. 2013).
11
   Johnson, 724 F.3d at 360.
12
   Id. at 359. The purpose of the conversion was to obtain the tax benefits of LLC status and
more easily facilitate formation of joint business entities. Id. at 341.
                                              4
maintains corporate, administrative, and operational headquarters in Philadelphia,

Pennsylvania, where it has resolved hundreds of cases through the Philadelphia

Court of Common Pleas‟ Mass Torts Program. Accordingly, Defendant‟s assertion

that litigating in nearby Wilmington, Delaware will result in an unfair and

significant burden is unpersuasive.

        Finally, practical concerns regarding the ease and expediency of litigation do

not support a finding of undue hardship for Defendant. The Court has issued

scheduling orders that endeavor to present these disputes to Delaware juries in the

most efficient manner possible under the circumstances. Although Defendant

argues that this Court should not assume the burden of these cases when Plaintiffs

have available forums in their home states, it is not this Court‟s duty to select the

best or most convenient forum available.13 Rather, Plaintiffs‟ choice of forum

must be respected unless Defendant presents unique circumstances that create the


13
   Candlewood Timber Grp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 999 (Del. 2004)
(quoting Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Refining, L.P., 777 A.2d
774, 779 (Del. 2001)) (“[W]hether an alternative forum would be more convenient for the
litigation, or perhaps a better location, is irrelevant . . . the trial court is not permitted to compare
Delaware, the plaintiff‟s chosen forum, with an alternate forum and decide which is the more
appropriate location for the dispute to proceed.”) (internal quotation marks omitted); Pipal Tech
Ventures Private Ltd., 2015 WL 9257869, at *10 (“My job in evaluating this motion is not to
choose the „best,‟ or even a „proper‟ forum; instead, it is to respect the Plaintiff‟s choice of forum
unless the Defendant can show resulting hardship or inconvenience so profound that it
overwhelms that choice.”); 1 Oak Private Equity Venture Capital Ltd., 2015 WL 7776758, at *8
(citing VTB Bank v. Navitron Projects Corp., 2014 WL 1691250, at *8 (Del. Super. Apr. 28,
2014)) (“The analysis is not one in which the Court should come to a conclusion based on a tally
of which, or how many, factors favor the defendant; rather, the Court must consider the weight
of those factors in the particular case and determine whether any or all of them truly cause both
inconvenience and hardship.”).
                                                   5
overwhelming hardship required for a forum non conveniens dismissal under

Delaware law.14 No unique circumstances are presented here.

                                        CONCLUSION

       The forum non conveniens standard is stringent, but not preclusive.15 This

Court finds that the application of the Cryo-Maid factors does not favor dismissal.

Defendant does not meet the “appropriately high burden”16 required to deprive

Plaintiffs of their chosen forum. Accordingly, Defendant‟s motions to dismiss for

forum non conveniens must be denied.



       NOW, THEREFORE, this 12th day of September, 2016, Defendant’s

Motions to Dismiss for Forum Non Conveniens are hereby DENIED.

       IT IS SO ORDERED.

                                                 Andrea L. Rocanelli
                                                 ___________________________________
                                                 The Honorable Andrea L. Rocanelli




14
   Martinez, 86 A.3d at 1106.
15
   Id. at 1105 (citing Ison, 729 A.2d at 843).
16
   Martinez, 86 A.3d at 1105.
                                                   6
