TBJ OCTOBER 2022
Can You Really Go Back Home?
Product failures abroad and Texas forum non conveniens.
Written by Rob Ammons and Molly Maier
Americans travel outside of the country for business and pleasure every day. What most Americans do not think about on these trips is how they will get justice if tragedy strikes abroad. Will a spur of the moment vacation destination determine the forum of a U.S. resident’s lawsuit? While you get to go home, can you take your lawsuit with you? By traveling abroad, are American residents risking their remedies against manufacturers? Forum non conveniens is the doctrine your clients have never heard of, but it may be the secret hurdle to their products liability lawsuit. This article generally discusses forum non conveniens in the context of product failures outside of the United States.
Many U.S. residents would assume they can sue in the U.S. for injuries suffered or the death of a loved one. But forum non conveniens threatens the right to sue within the U.S. when a product fails abroad.
This article breaks down forum non conveniens law in Texas when a product fails abroad and important considerations for attorneys faced with forum non conveniens issues in Texas and federal courts.
Texas State Court
Forum non conveniens motions are governed by statute under Texas law. While a challenge based on forum non conveniens is generally permitted in Texas, one enumerated exception is often used to defeat any challenge. In injury and death cases, “[t]he court may not stay or dismiss a plaintiff’s claim under [the doctrine of forum non conveniens] if the plaintiff is a legal resident of this state or a derivative claimant of a legal resident of this state.”1 Accordingly, Texas legal residents have clear, enumerated rights to remain in their home forum. Texas’ statute provides the best and most efficient option for legal residents to maintain products liability actions in Texas state court regardless of the mishap occurring abroad.2
Defeating a motion to dismiss for forum non conveniens in federal court is less certain and requires significantly more analysis.3 The federal analysis of forum non conveniens is a two-part test: (1) is there an available and adequate alternate forum, and (2) do public and private interest factors favor dismissal?4 Parties need to remain conscious of three considerations influencing this analysis before drafting a motion or response on forum non conveniens.
First, the movant bears the burden of proof on every element of the analysis.5 To succeed, the moving defendant must present sufficient evidence of the available and adequate forum and conduct the proper balancing test. Plaintiffs responding to a motion to dismiss should thoroughly analyze the defendant’s motion to ensure the defendant has met its burden and properly addressed each part of the analysis.
Second, a plaintiff’s chosen forum is always given deference in the forum non conveniens analysis. However, when the plaintiff has a close connection to the forum, the plaintiff’s choice should be afforded more deference than a foreign plaintiff’s choice. With any balancing test, the level of deference afforded to each factor could be the deciding factor in tipping the scale one way or the other.6 Accordingly, plaintiffs should be arguing the appropriate level of deference based on the facts of the case. In deciding the deference level to give, courts consider if convenience was a factor in choosing the forum.7 While some deference is always given to a plaintiff’s chosen forum, more deference is given to a plaintiff’s chosen “home” forum.8 “Home” forum deference should be applied to legal residents as well as U.S. citizen residents.9 In the case of legal residents and citizens of the forum state, practitioners should argue that deference should be given to the plaintiff’s choice of a convenient forum, this deference will make it more likely that a plaintiff will survive a forum non conveniens challenge.
Third, both parties should be prepared to argue the recognized public and private interest factors. The private factors include: “(i) the relative ease of access to sources of proof; (ii) availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; (iii) possibility of view of [the] premises, if view would be appropriate to the action; (iv) all other practical problems that make trial of a case easy, expeditious and inexpensive ... enforceability of judgment[; and whether] the plaintiff [has sought to] ‘vex,’ ‘harass,’ or ‘oppress’ the defendant.”10 The public factors include: “(i) the administrative difficulties flowing from court congestion; (ii) the local interest in having localized controversies resolved at home; (iii) the interest in having a trial of a diversity case in a forum that is familiar with the law that must govern the action; (iv) the avoidance of unnecessary problems in conflicts of law, or in application of foreign law; and (v) the unfairness of burdening citizens in an unrelated forum with jury duty.”11 None of these factors alone should be given conclusive weight.12 However, some factors are considered less important in the modern era. Specifically, product failures often lead to crashes and other accidents in foreign countries. American plaintiffs with an accident abroad should argue that the ability to view the foreign site of the accident is not important given advanced technology accurately depicting the scene of the accident for the jury and judge.13 Even if a defendant establishes an alternative forum exists, American plaintiffs may keep the case in the United States by effectively arguing the private and public balancing factors.
Any practitioner considering moving for a forum non conveniens motion to dismiss or expected to respond to one in a products liability action should think through the balancing factors, burden, and deference considerations noted above before conducting the full forum non conveniens analysis.TBJ
is the founding partner in the Ammons Law Firm. He has been certified in personal injury trial law by the Texas Board of Legal Specialization since 1994. Ammons handles catastrophic injury and wrongful death cases throughout the United States.
is an associate attorney at the Ammons Law Firm. She is a 2020 graduate of Baylor Law School practicing personal injury litigation.