Products Liability Law Daily Grenfell Tower fire litigation dismissed; likely heading to the U.K.
Thursday, September 17, 2020

Grenfell Tower fire litigation dismissed; likely heading to the U.K.

By David Yucht, J.D.

The court dismissed products liability claims against the manufacturers of an allegedly defective refrigerator/freezer and of the "combustible cladding" covering the Tower after concluding that the U.K. was the proper forum to adjudicate the plaintiffs’ claims.

A federal judge in Pennsylvania granted a motion to dismiss, without prejudice, an action filed by the estates of 69 individuals who perished in a United Kingdom apartment building fire and by 177 injured survivors of the fire against U.S. manufacturers of the appliance that was alleged to have started the fire and of the cladding that was on the building’s external façade. Because the U.K. was considered a substantially more convenient forum for litigating the case, the action was dismissed on forum non conveniens grounds. However, the court indicated it would allow the victims to reinstate the action in Pennsylvania if the U.K. court determined that Pennsylvania law applied to damages and that at least one of the U.S. companies was liable for punitive damages (Behrens v. Arconic, Inc., September 16, 2020, Baylson, M.).

This matter involved the 2017 fire at the Grenfell Tower in West London—Britain’s deadliest residential fire since World War II. Grenfell Tower was a government-funded, lower-income, residential high-rise apartment building. The fire started in a refrigerator/freezer located in one of the apartments. It spread throughout the building after reaching the "highly combustible cladding" on the Tower, killing 72 people. The estates of 69 individuals who perished in the fire and 177 injured survivors brought a products liability action in Pennsylvania state court. It was subsequently removed to federal court. They alleged that various U.S. companies supplied defective products to the apartment building that exacerbated the severity of the fire. The U.S. companies moved to dismiss on forum non conveniens grounds.

Forum non conveniens. The court granted the motion dismissing this matter without prejudice in favor of litigation in the U.K. However, because of the severity of the tragedy and the difference between the "damages regimes" of the U.K. as compared to Pennsylvania, the court indicated it would allow the victims to reinstate the action in Pennsylvania if the U.K. court determined that Pennsylvania law applied to damages and that at least one of the American companies was liable for punitive damages. The court noted that the U.K. was available as an adequate alternative forum and the subject U.S. companies were amenable to suit in the U.K.

The balance of private and public interest factors tipped in favor of trial in the U.K., overcoming the moderate amount of deference due the victims’ forum choice. Among the factors that the court believed weighed heavily in favor of dismissal were the ease of access to evidence in the U.K., the number of witnesses located in the U.K., and the inability to implead third-parties in Pennsylvania as opposed to the U.K. where all parties could be joined in a single case. Other factors weighing somewhat in favor of dismissal were problems in coordinating this litigation with a British government inquiry, parallel litigation pending in the U.K., the U.K.’s interest in resolving claims of U.K. residents, and the desire to avoid burdening Pennsylvania residents with jury duty in this case. The court felt there was only one factor—potential choice of law issues—that could be viewed as favoring keeping the case in Pennsylvania. The court also considered the impact of the forum non conveniens discovery on this motion. The discovery that occurred did not defeat dismissal because it was not on the merits, the case was still relatively new, and the parties’ discovery efforts were not wasted because the victims could use evidence that they obtained in Pennsylvania in the U.K. litigation. The court further noted that dismissal here was consistent with the outcomes of other major international accident cases.

Conditions of dismissal. As part of its order dismissing without prejudice the case on forum non conveniens grounds, the court conditioned dismissal on a number of factors, including:

  • the defendants agree to waive statute of limitations defenses in a subsequent proceeding brought in the U.K. by the plaintiffs in a case against the defendants arising out of the Grenfell Tower fire as long as that case is filed within one year from the date of this forum non conveniens dismissal;
  • the defendants agree to submit to the jurisdiction of the English courts in the subsequent U.K. proceeding; and they agree to accept the exercise of jurisdiction by the English courts;
  • the defendants agree that the plaintiffs may reinstate the current action in this court if the English courts reject, for jurisdictional reasons, the subject matter of the plaintiffs’ claims, making those courts unavailable as an alternative forum; and
  • if the U.K. court determines that Pennsylvania law (or the law of another state in the U.S.) applies to damages and that one or both defendants may be liable for punitive damages, but decides to grant dismissal of the damages phase without prejudice in the U.K. for determination in the U.S., then the plaintiffs may reinstate their action in the current federal district court in Pennsylvania.

The case is No. 2:19-cv-02664-MMB.

Attorneys: Robert J. Mongeluzzi (Saltz, Mongeluzzi, Barrett & Bendesky, PC) for Kristen Behrens. Jason C. Murray (Bartlit Beck LLP) and Joseph Kernen (DLA Piper LLP) for Arconic, Inc. James M. Gross (Jones Day) for Whirlpool Corp.

Companies: Arconic, Inc.; Whirlpool Corp.

MainStory: TopStory JurisdictionNews SCLIssuesNews BuildingConstructionNews HouseholdProductsNews PennsylvaniaNews

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