1 All counsel on the Plaintiffs’ Executive Committee were most professional and helpful to the Court in this case. Mr. Hoffinger agreed to proceed pro bono in this case, and waived any possible fee. The Court has been informed that neither Mr. Hoffinger, nor anyone else on the Plaintiffs’ Executive Committee, nor anyone in their law firms went to India on the days immediately following the tragedy to “sign up” Indian plaintiffs. The behavior of many American lawyers who went to Bhopal, India during December 1984 and January 1985 is not before this Court on this motion. Suffice it to say that those members of the American bar who travelled the 8,200 miles to Bhopal in those months did little to better the American image in the Third World — or anywhere else. None of them were on the Plaintiffs’ Executive Committee.

2 The Court found a theoretical flaw in the opposite rule, as set forth by the Third Circuit. Noting that a plaintiff would choose the forum with the most favorable choice of law rules in the first instance, “if the possibility of an unfavorable change in substantive law is given weight in the forum non conveniens inquiry, dismissal would rarely.be proper.“ Piper at 250.

3 Similarly, the Court determined that “the possibility of a change in law favorable to defendant should not be considered.” Piper at 252, n.19.

4 Rob Hager, Esq. for Citizens Commission on Bhopal, National Council of Churches, United Church of Christ Commission for Racial Justice, et al.

5 For example, Mr. Palkhivala describes four cases in which the Indian Supreme Court crafted new and “courageous” remedies in situations relating to abridgements of fundamental rights. (PalKhivala Aff. at 6-7). Mr. Dadachanji describes similar decisions in which he participated as an advocate, in his affidavit. (Dadachanji Aff.at 2-3). The Court recognizes the innovativeness of the Indian Courts, while refraining from an exhaustive survey of Indian case law.

6 India allegedly has 10.5 judges per million population, as compared to 107 judges per million in the United States (Galanter Aff.at 15).

7 A federal court has the power to condition transfer under the doctrine of forum non conveniens upon “the condition that defendant corporations agree to provide the records relevant to the plaintiff's claims.“ Piper at 257, n.25. While the Court feels that it would be fair to bind the plaintiffs to American discovery rules, too, it has no authority to do so.

8 The Court observes that the alleged problem would appear to act to the detriment of defendant, not plaintiffs. It is Onion Carbide which urges that third-party defendants are necessary. (Memo in Support at 27-28).Defendant discounts the supposed unavailability of third-party impleader, while the plaintiffs find its lacK objectionable. These postures lead the Court to the conclusion that this argument is not compelling in either direction. The lack of specific third-party practice will not concern the Court if it does not concern Union Carbide.

9 Discovery was ably managed by Magistrate Michael H. Dolinger, of the Southern District of New York.

10 The seven operating units included Carbon Monoxide, MIC/Phosgene, Carbamoylation, Alpha Napthol, Aldicarb, Utilities and Formulations.

11 Mr. Woomer states that a post-accident technical team sought to interview these 193 employees. According to Mr. Woomer, the Indian CBI, which had stepped into the plant following the tragedy, advised the technical team that interviews could be conducted only of the General Works Manager and MIC Production Manager, neither of whom was present at the time of the leak. (Woomer Aff. at 57-58).

12 The seven functional units were Maintenance, Quality Control,Stores, Purchasing, Safety/Medical, Industrial Relations and Works Office.(Woomer Aff. at 6)

13 Mr. Bud Holman, counsel for Union Carbide, states in his second affidavit that over 36,000 of the 78,000 pages of documents seized by the CBI represent plant operation records. (Holman Aff. #2 at 5). He asserts that 1,700 pages deal with maintenance work performed in 1983 and 1984. (Holman Aff. *2 at 8)

14 The 1982 “Operational Safety Survey” was apparently fairly extensive. It was conducted by three United States employees of Union Carbide, and led to a report which discussed “major” concerns and possibility of “serious personnel exposure.” (Memo in Opp. at25). Mr. Wooraer asserts, and plaintiffs do not refute, that this Survey was not intended to “serve a policing function,” but was performed at the specific request of UCIL. In addition, follow-up responsibility “rested exclusively with UCIL plant management.” (Woomer Aff. at 37-38). Moreover, Union Carbide states that the Union of India, itself, conducted similar safety audits and made recommendations. (Affidavit of Ranjit K. Dutta, Business Manager of Union Carbide Agricultural Products Company (“butta Aff.“) at 58-64).

15 Plaintiffs assert that Mr. Couvaras exemplifies Union Carbide's “international employee” whose mobility throughout the Union Carbide affiliates causes “[a]ny notion of discrete corporate identities [to] blur[ ].” (Memo in Opp. at 18-19)

16 As support, Mr. Brown points to the Union Carbide Corporate Policy Manual, Section 1.10 which states: The “arms-length principle” is a central consideration in transfer and pricing of all technology transactions with affiliates. “Arms length” is defined as: The principle whereby intercompany transactions between Union Carbide and its affiliates, or between affiliates, will reflect the cost to unrelated parties of the same or similar technology under similar circums tances. ﹛Plaintiffs’ Exhibit 3). Thus, Mr. Brown argues that Union Carbide related with UCIL much as it would have with an unaffiliated, or even competing company.

17 Humphreys and Glasgow was allegedly responsible for the following: Among other things, developing final equipment and unit layouts and plot plans, including equipment layout drawings, detailed piping arrangement drawings, layout of electrical equipment; the steel structure, including detail design and working drawings for the buildings and foundation; mechanical equipment design including specification of all proprietary and fabricated equipment; review and certification of vendor's drawings and documents, preparation of orthographic piping drawings for all portions of the plant, preparation of isometric piping drawings, preparation of preliminary and final bills of materials for pipes, valves, gaskets, instrument associated hardware, electrical conduit; electrical engineering work, instrument engineering, including drawings on instrument hook ups, lists of instruments, review of instrument specification and data make calculation to size insulation, preparation of insulation lists, preparation of material take off and inquiry specification packages, procurement assistance including assisting in evaluation of bids and selection of vendors, inspection of certain equipment and materials to ensure proper workmanship and compliance with specifications and codes, and coordinating where Indian law required inspection or certification by governmental inspections; preparation of a project schedule, project reports and costs control reports at least once per month, construction supervision including supervision of mechanical testing of installed equipment, assistance in commissioning.(Dutta Aff. at 19-20).

18 Mr. Couvaras, whom plaintiffs assert was a “key engineer“ for the project, and enjoyed mobility between Union Carbide and UCIL, is described by Mr. Dutta as primarily a UCIL employee.The “international employee” status he carried is explained as a pension accounting mechanism. (Dutta Aff. at 27).

19 Mr. Dutta asserts that Mr. Munoz was a paid consultant to a member of Plaintiffs’ Executive Committee at the time the affidavit was made. No documentary proof of this assertion has been submitted. (Dutta Aff. at 31; Holman Aff. #2 at 18). Moreover, two affidavits submitted on behalf of defendant state that Mr. Munoz was removed from his position as Union Carbide Corporation Division President in 1978, and is “extremely bitter as a result of the removal.” (Dutta Aff. at 31; Holman Aff. #2 at 18).

20 Union Carbide asserts throughout its briefs and affidavits that evidence relevant to the question of damages is located in India, as well. Certainly the victims themselves, and, for the most part, their medical records, are found in or near Bhopal. However, as plaintiffs argue, a “head count” of witnesses is not dispositive of a forum non conveniens motion. (Memo in Opp. at 74-79). Not all of the victims would need to be transported to the United States to describe their injuries. The Bhopal “scheme”provides a mechanism for evaluating each individual's claim. Only representative plaintiffs need testify as to damages. This Court would not countenance the impractical and time consuming process of calling each of the approximately 200,000 victims at a trial in this country. Evidence on damages, as well as liability, is found in India, but not to the overwhelming extent contended by defendant. Moreover, the Court is concerned with the policy effect of allowing the number of foreign victims to affect directly the forum non conveniens determination. If carried to the extreme, this “head count” doctrine would mean that the more people hurt, the less likely a suit in this country would be.

21 Indian federal and municipal officials also allegedly conducted on-site inspections resulting in approvals for portions of the construction, including approvals for the flare tower, MIC layout and storage, unit refrigeration and MIC/Phosgene structure. (Dutta Aff. at 46-47; Exs. 102-104).

22 One such regular inspection appears to have taken place approximately two weeks before the MIC disaster. (Dutta Aff. at 56; Ex. 116).

23 Only a small number of plaintiffs in the Bhopal litigation are United States citizens. Of the 200,000 plaintiffs, approximately nine are American. They have filed the complaints numbered 85 Civ. 0447, 85 Civ. 1096 and 85 Civ. 2098. This is of relative insignificance on this motion to dismiss. “The federal courts have not felt constrained to retain jurisdiction over predominantly foreign cases involving American plaintiffs where an examination of the Gilbert factors demonstrated that the action is more appropriately brought in a foreign forum …. [T]he presence of a handful of American plaintiffs does not preclude such dismissal.“ Nai-Chao v. Boeing Co., 555 F. Supp. 9,21 (N.D.Ca.1982), aff'd sub, nom. Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir. 1983).

24 In any event, plaintiffs’ “deterrence” and “blackmail” arguments presuppose that Union Carbide would be held more accountable by an American than by an Indian tribunal. Certainly, there is a real possibility of a substantial Indian judgment against defendant, which would serve an identical deterrent function, and prevent a rush of multinationals to foreign locations.

25 While the accident is more than a “local controversy,” given the interests of the Indian populace, it is certainly a national controversy which should be “decided at home.“ Gilbert at 508-9. No doubt Indian citizens, many of whom barely are acquainted with their American lawyers,will find the case more accessible if it is tried “in their view” in India.

26 Upon a cursory review of the individual complaints comprising this action, the Court” notes that suits were brought in California, Connecticut, the District of Columbia, Florida, illinois, Louisiana, Maryland, NewJersey, NewYork, Pennsylvania, Tennessee, Texas and West Virginia, at a minimum