Although plaintiffs in product liability cases have the first choice in selecting a forum, defendants may be able to challenge the forum by filing a motion to dismiss for forum non conveniens.  The general trend of state courts is to transfer cases if a more convenient forum is clearly established.  States, however, differ on the weight given to the convenience of the new jurisdiction.

In Madison County, Illinois, a notoriously plaintiff-friendly jurisdiction for asbestos litigation, recent decisions on motions to dismiss for forum non conveniens have turned on whether the recommended jurisdiction would be convenient to all parties.  The Illinois Supreme Court in 2012 reevaluated the standard for transfers under forum non conveniens and held that all "relevant private and public interest factors” must be assessed to determine whether the foreign jurisdiction is more convenient to all parties.  See Fennell v. Ill. Cent. R.R. Co., 2012 IL 113812, ¶ 24, 987 N.E.2d 355.  Judges in Madison County, however, have emphasized the “convenience to all parties” in denying recent motions.  See Murphy v. CBS Corp. (Case No. 12-L-1141); Beacher (Brown) v. American Biltrite Co. (Case No. 12-L-1392); Warden v. Caterpillar, Inc. (Case No. 12-L-1065); Hunt (Munsey-Hunt) v. 84 Lumber Co. (Case No. 12-L-1140).  Although the plaintiffs in these cases had little connection to Madison County, the court determined it could not be said that the alternative jurisdictions were more convenient for all parties.  Similarly, in a case earlier this year in which the plaintiff never lived or worked in Madison County, defendant's motion to dismiss for forum non conveniens was denied for failure to show that the recommended jurisdiction was more convenient to all parties.  See Bald v. Ace Sprinkler Co. (Case No. 14-L-1448).

Maryland appellate courts have imposed a standard similar to the Fennell standard for forum non conveniens transfers.  In Smith v. Johns Hopkins Community Physicians, Inc., No. 1191 (January 23, 2013), the Court of Special Appeals of Maryland held the trial court must consider two factors in deciding whether to transfer a case on the grounds of forum non conveniens:  (1) the convenience of the parties and 2) the interests of justice.   Maryland trial courts, however, place more emphasis on the convenience of the parties in the current forum than the proposed forum for the first prong of the test.  This includes consideration of the convenience of witnesses to participate in the litigation where it is currently pending.  Then, if the majority of the public and private interests factors fall in favor of the transfer, Maryland courts are more likely to grant motions to dismiss on forum non conveniens grounds.  See, e.g., Robert Wymer, et al. v. Avco Corporation, et al. (Case No. 24X13000696); Richard A. Roop, Sr. v. American Honda Motor Co. Inc., et al. (Case No. 24X14000182). 

Pennsylvania also has a more relaxed emphasis on the convenience of the recommended jurisdiction and does not require movants to provide specifics about the effect of the venue change on all the parties.  Bratic v. Rubendall, No. 21 EAP 2013 (Pa. Aug. 18, 2014).  In Bratic, the Pennsylvania Supreme Court reaffirmed the standard it set forth in Cheeseman v. Lethal Exterminator (701 A.2d 156 ((1997)), but loosened the standard of “oppression needed for a judge to exercise discretion in favor of granting a forum non conveniens motion” as implied by post-Cheeseman opinions.  The court clarified that although “[m]ere inconvenience remains insufficient there is no burden to show near-draconian consequences.”  Pennsylvania courts place greater emphasis on the hardship parties and witnesses face litigating in the current jurisdiction than ensuring the universal convenience of the recommended jurisdiction.

Despite the varying degrees of emphasis placed on the convenience of the recommended jurisdiction, almost all jurisdictions consider the interests of justice in weighing whether to dismiss or transfer a case.  Accordingly, a strong motion to dismiss for forum non conveniens will apply the facts of the case to the public and private interest factors of import in that jurisdiction, and, in jurisdictions that emphasize the convenience of the recommended forum, demonstrate for the court a clear alternative jurisdiction in which both the interests of justice and the convenience of the parties can be met.