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U.S. Court of Appeals for the Third Circuit [2022]: Behrens et al. v. Arconic, Inc. et al., Nos. 20-3606, 21-1040 and 21-1041

This is an informal case summary prepared for the purposes of facilitating exchange during the 2023 WIPO IP Judges Forum.

 

Session 6: Rules of Evidence in Intellectual Property Litigation

 

U.S. Court of Appeals for the Third Circuit [2022]: Behrens et al. v. Arconic, Inc. et al., Nos. 20-3606, 21-1040 and 21-1041

 

Date of judgment: July 8, 2022

Issuing authority: United States Court of Appeals for the Third Circuit

Level of the issuing authority: Appellate instance

Type of procedure: Judicial (Civin( �/span>

Subject matter: Other

Plaintiff: Behrens et al.

Defendant: Arconic, Inc. et al.

Keywords: Evidence, Cross-border evidence, Forum non conveniens

 

Basic facts: Injured survivors, spouses, and estate administrators of persons who died in the Grenfell Tower fire in London, England (collectively, Plaintiffs), filed a products liability action against United States suppliers (Defendants) of allegedly defective products that exacerbated the conflagration of fire.  Defendants moved to dismiss for forum non conveniens (i.e., being an inconvenient forum).  The District Court for the Eastern District of Pennsylvania held that Plaintiffs’ claims should proceed in the United Kingdom and dismissed the action for forum non conveniens.

 

The District Court concluded that the United Kingdom was an adequate alternate forum, that Plaintiffs’ decision to bring this action in Pennsylvania was entitled only to moderate deference, and that the private and public interest factors on balance weighed in favor of dismissal.  Specifically, it held three private interest factors weighed heavily for sending this case overseas: (1) ease of access to sources of proof, given the amount of potentially relevant UK-based evidence; (2) the large number of third-party witnesses located in the United Kingdom, most of whom could not be compelled to attend trial in Pennsylvania; and (3) the inability to implead UK-based third parties who may bear responsibility for the tragedy.

 

However, the District Court attached a condition to its dismissal: if the UK court concludes that Pennsylvania law applies to damages and that Defendants may be liable for punitive damages, that court may send the case back to the United States for damages-only proceedings.

 

Plaintiffs appealed the dismissal, contending, in part, that the District Court erred in

holding that the UK-based physical evidence weighed in favor of dismissal.  They assert that most of the evidence and witnesses relevant to their strict liability claims are in the United States or France, not the United Kingdom.  Defendants cross-appealed to challenge the propriety of leaving an avenue for the action to return to the United States.

 

Held: Affirmed the District Court’s forum non conveniens judgment but granted Defendants’ cross-appeal, striking the dismissal condition.

 

Relevant holdings in relation to rules of evidence in intellectual property litigation: In response to Plaintiffs’ contention that because most of the evidence and witnesses relevant to their strict liability claims are in the United States or France, the UK-based evidence does not weigh in favor of dismissal, the Court of Appeals for the Third Circuit endorsed the analysis of the District Court, reiterating that when assessing the parties’ access to proof, the focus is not only on evidence relevant to the plaintiff's claims but also on evidence relevant to “any potential defenses to the action.”  Because the UK-based physical evidence is relevant to Defendants’ argument that Plaintiffs’ injuries were caused not by defects in their products but rather by faulty design and construction during the Tower refurbishment, the District Court properly factored this evidence into its forum non conveniens analysis.

 

Relevant legislation:

U.S. Code, Title 28 - Judiciary and Judicial Procedure, §§ 1 – 4105