Delaware Judge Upholds Infant Plaintiff’s Choice of Forum in Birth Defect Lawsuit Brought against Semiconductor Manufacturer and Global Supplier of Industrial Gases and Chemicals

Delaware Superior Court Judge upholds family’s choice of forum in a toxic tort lawsuit arising from a father’s wrongful occupational exposure to reproductively toxic chemicals which resulted in his child's severe birth defects.

WILMINGTON, Delaware, December 13, 2010 - In a decision issued today, the Honorable Jan R. Jurden of the Superior Court of the State of Delaware, upheld Levy Phillips & Konigsberg, LLP’s clients’ choice of forum in a birth defect lawsuit¹ brought by an egregiously injured child, Noah Smith, and his parents, Kevin and Karen Smith, (collectively "Plaintiffs") against Freescale Semiconductor, Inc. and Air Products and Chemicals, Inc. (collectively "Defendants").

The case in which the decision was rendered involves claims that Noah was born with severe birth defects, including a malformed skull and heart, as a result of his father Kevin’s exposure to reproductively toxic chemicals and substances while working as an Air Products employee at Freescale Semiconductor's premises prior to Noah’s conception.

Defendants argued that by being forced to defend the case in Delaware, they would face overwhelming hardship and inconvenience, and thus the case should be dismissed. In denying the Defendants’ motion to dismiss, the Court agreed with Plaintiffs that there would be no clear disadvantage to litigating the case in Delaware, as opposed to another forum such as Arizona, where Plaintiffs reside, and held that Defendants had not stated with the requisite particularity why proceeding in Delaware would cause them overwhelming hardship and inconvenience.

In honoring the Plaintiffs’ choice of forum, the Court cited several failures on the part of Defendants, including a failure to explain why it would not be relatively easy to access proof in Delaware, a failure to name which, if any, witnesses would be beyond their reach because of an unavailability of compulsory process, and the substance of such witness’ testimony, a failure to establish a conflict of law between Delaware and Arizona, and why if such a conflict existed, Delaware would be incapable of applying the law of the other jurisdiction, and a failure to show other practical considerations that would warrant dismissal of the case. The Court also referenced other considerations, such as the ability of the Court or jury to view the relevant premises through technological presentations such as computer animation, photographs or video footage.

The Smith family is represented by a team of birth defect lawyers from Levy Phillips & Konigsberg, LLP, in conjunction with co-counsel at Bifferato LLC, Thornton & Naumes, LLP, and Plattner Verderame, P.C. Roxanne DeFrancesco of Levy Phillips & Konigsberg, LLP, appeared in Court to oppose the motion, along with Connor Bifferato and J. Zachary Haupt, of Bifferato LLC.

Employees of the semiconductor industry, particularly those employees who worked in or near clean rooms, can be heavily exposed to reproductively toxic chemicals and substances when owners, operators or controllers of semiconductor manufacturing premises do not observe appropriate standards, principles and guidelines respecting reproductive health and safety practices. Children born of exposed employees are frequently born with devastating birth defects, such as those sustained by Noah Smith. Levy Phillips and Konigsberg, LLP, is committed to pursuing justice for these individuals and to deterring semiconductor companies from maintaining hazardous workplaces.

¹ Smith v. Freescale Semiconductor, et al., No. N10C-070271-JRJ (Del. Super., New Castle County).

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