The cause celebre of the moment, a decision written by Judge Posner of the Seventh Circuit, Monica Del Carmen Gonzolez-Servin, et al. v. Ford Motor Company, No. 11 Civ. 1665 (7th Cir. Nov. 2011), literally shows pictures of a ostrich and of a man with his head in the sand. The decision contains a ruling on an issue of international litigation worthy of note as well.
The issue in the case related to forum non conveniens, in particular under what circumstances could a district court dismiss on forum non conveniens grounds a case against a U.S. company for product liability affecting non-U.S. plaintiffs. In the 2009 decision in Abad v. Bayer Corp., F.3d 663 (7th Cir. 2009) (copy of slip opinion attached here), the Seventh Circuit upheld dismissal on forum non conveniens grounds of two cases involving Argentinean plaintiffs who brought product liability claims against U.S. companies in federal district courts. In that decision, the Court of Appeals addressed two notorious product liability cases, defective Firestone tires on Ford Explorers causing rollover accidents, and blood-clotting medicines infected with HIV or Hepatitis. That decision determined that uncertainty about whether a non-U.S. forum (in that case Argentina) would accept U.S. market share liability theories meant that that important factor in the forum non conveniens analysis favored dismissal of the case in favor of Argentina.
In the current case, the Court of Appeal was distressed at the near-complete avoidance of Ford notwithstanding the directness of the holding of the case to the cases before the Seventh Circuit. Said the Court in affirming the dismissal of both cases on forum non conveniens grounds (one in favor of Israel and one in favor of Mexico):
When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don’t know the thinking that led the appellants’ counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.
The ostrich is a noble animal, but not a proper model for an appellate advocate.