{¶ 85} I concur in part with the result reached by the majority opinion, and I dissent in part. I write separately to address some areas of particular concern to me.
{¶ 86} First, I believe that the common pleas court abused its discretion by denying the motion to dismiss on grounds of forum non conveniens. The doctrine of forum non conveniens, "which allows a court having proper jurisdiction to dismiss an action when to do so would further the ends of justice and promote the convenience of the parties, [is] an inherent power of the trial court, resting within its sound discretion." Chambers v.Merrell-Dow Pharmaceuticals, Inc. (1988), 35 Ohio St.3d 123,125, 519 N.E.2d 370. The criteria the court should consider are generally divided into the private interests of the litigants and the public interest of the courts and citizens of the forum.
{¶ 87} "Important private interests include: `the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained.'" Chambers,35 Ohio St.3d at 126-127, 519 N.E.2d 370, quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055. Although "the *Page 402 plaintiffs' choice of forum should rarely be disturbed,"Gilbert, 330 U.S. at 508, 67 S.Ct. 839, 91 L.Ed. 1055, particularly when the plaintiff has chosen his home forum, "[b]ecause the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference." Piper Aircraft Co.v. Reyno (1981), 454 U.S. 235, 256, 102 S.Ct. 252,70 L.Ed.2d 419.
{¶ 88} In this case, although depositions of treating doctors had to be taken in North Carolina and medical records had to be sought from there, none of the corporate records were located in North Carolina, and all of appellant's own witnesses were from Ohio and Texas. It does not appear that the convenience of the parties and witnesses could be better served in one forum than another.
{¶ 89} "Public interest factors to be considered include the administrative difficulties and delay to other litigants caused by congested court calendars, the imposition of jury duty upon the citizens of a community which has very little relation to the litigation, a local interest in having localized controversies decided at home, and the appropriateness of litigating a case in a forum familiar with the applicable law." Chambers,35 Ohio St.3d at 127, 519 N.E.2d 370.
{¶ 90} While the Ohio courts are undoubtedly extremely familiar with asbestos litigation under the FELA, the connection between this litigation and Ohio is otherwise extremely tenuous, based only on the fact that Norfolk Southern does business here. The efficiency of conducting all asbestos litigation in a few fora that have become experts in such matters should not override the general interest in deciding local controversies locally. Our federal system was not designed for efficiency, but for maximum local autonomy. Making Ohio bear the burden of conducting asbestos litigation from other states simply because it is familiar with this type of litigation is unfair. Therefore, I would find that the court abused its discretion by overruling the motion to dismiss on grounds of forum non conveniens.
{¶ 91} However, dismissal is not an appropriate remedy at this juncture. If we vacated the judgment and dismissed the case at this point, we would erase the results of a lengthy proceeding. That result would not remedy the harm appellant has already suffered because of the increased cost and inconvenience of litigating here. Therefore, although I believe that the denial of appellant's motion to dismiss was an abuse of discretion, I would not reverse on that basis.
{¶ 92} Second, I must disagree with the majority's determination that the common pleas court should not have allowed the jury to consider appellees' claim for fear of developing cancer. The majority concludes that his "worry" and his family's "concern" that he would develop cancer is not the equivalent of "serious fear." Such a position rewards plaintiffs who can express their fears dramatically, while penalizing the stoic. "Worry," "concern," and "fear" are all synonyms. *Page 403 See New American Roget's College Thesaurus (1985) 638 ("Worry,n. care, anxiety, mental anguish, uneasiness, fear, apprehension; concern, misgiving"). One would not "worry" or be "concerned" if one were not afraid.
{¶ 93} It is incumbent on the claimant to prove that his fear is "genuine and serious," Norfolk W. Ry. Co. v. Ayers (2003),538 U.S. 135, 157, 123 S.Ct. 1210, 155 L.Ed.2d 261, but this does not mean that the fear must be debilitating, as the majority apparently suggests. Rather, I would construe the phrase "genuine and serious" to mean that fear of cancer is compensable if it is real and fact-based. Here, Seaford testified that his doctors told him that he had an increased risk of developing cancer, that he worried about it, and that his family was concerned. In my view, this testimony was sufficient to support the court's decision to allow this issue to go to the jury.
{¶ 94} Finally, I disagree with the majority's decision to remand this matter for further proceedings with respect to the question whether the settlements appellees actually received from the asbestos manufacturers should be set off against the judgment in this case. A railroad is liable for the whole injury suffered by an employee under the FELA, and that liability is not subject to apportionment. Ayers, 538 U.S. at 159-60, 123 S.Ct. 1210,155 L.Ed.2d 261. However, if the employee has actually recovered some of the damages from another source, the amount of the uncompensated damages actually suffered by the employee has been reduced. To compensate the employee for the entire loss would result in a windfall. See Schadel v. Iowa Interstate RR., Ltd. (C.A.7 2004), 381 F.3d 671 (judgment against a railroad on a claim under the FELA was properly reduced by the amount of a settlement of a claim against another tortfeasor).
{¶ 95} Schadel makes clear that federal, not state, common law governs the question whether a setoff should be permitted and that the federal rule requires a pro tanto reduction of the judgment by the amount of a settlement.8 Accordingly, I would affirm the common pleas court's judgment, but would remand for the common pleas court to reduce the amount of damages awarded to appellees by the amount of the settlements received by the appellees from the asbestos manufacturers.
8 If the law of North Carolina does apply, that would be a further reason for hearing the matter in North Carolina. See the previous discussion of forum non conveniens. *Page 404