Reprinted from BulletILN, October 10, 2003
Companies are often sued in the United States for product liability claims relating to accidents that occurred in other countries. In the case of large national or international corporations with operations in many jurisdictions, plaintiffs have the luxury of carefully selecting venues that are known to be plaintiff-friendly and have a history of large awards.
This "forum shopping" is especially common in cases relating to aviation accidents. Texas courts have frequently been the venue selected because of their reputation for liberal tort theories and huge damage verdicts. While U.S. defendants may be tempted to have such cases moved to the most logical foreign country for trial, doing so may, in fact, be a bad tactical and strategic decision because of the often unpredictable results and the latitude that foreign judges may have. An alternative approach is illustrated in the case of Bain v. Honeywell.
Whose Case is This, Anyway?
John and Peta Bain, Individually, and on Behalf of Scott Bain, Deceased v. Honeywell International, Inc. In this case, an Australian helicopter pilot, Scott Bain, living in British Columbia, Canada, and working as a helicopter pilot for a British Columbian air carrier, sustained fatal injuries in an accident while practicing a piloting technique in his Bell Model 206 JetRanger helicopter. The pilot's parents and estate sued U.S. companies, including Bell Helicopter and Honeywell International in Orange County, Texas, to recover damages under Texas law for the death of Scott Bain. This was a classic case of forum shopping.
Why file suit in Texas, a venue that has no connection to the accident? Simply because it's known for large plaintiff verdicts. In this case, there simply was no relationship between Texas and any of the parties. The only two jurisdictions with any interest in application of their laws would have been British Columbia, Canada, (the lex loci delicti) and the Australian Capital Territory. But rather than file suit in either of these jurisdictions, the plaintiff chose to bring suit in Orange County, Texas.
A Question of Strategy
Early in the case, Honeywell and its attorneys, Beirne, Maynard, and Parsons, L.L.P., had to make a decision. One option was to ask the court for a forum non conveniens dismissal and agree to try the case in British Columbia. This would have been a perfectly reasonable request, given the lack of Texas involvement. Alternatively, Honeywell could choose to allow the U.S. court to address the merits of the case and render justice. The defense elected the latter strategy, keeping the case in the U.S., and this turned out to be a wise decision.
There are good reasons why keeping the case in Texas (although not in state court in Orange County) made sense. First, foreign courts are far less predictable, and when multinational parties are involved (e.g., Australian decedent, Canadian event, U.S. manufacturers), the case can quickly become a quagmire and remain pending for an indefinite period, such as a case that was dismissed in the 70's, refiled in Pakistan, and remained pending until 2002. For cost and other reasons, most defendants want these cases resolved quickly, especially if they expect to win. Additionally, foreign courts provide unpredictable results. Some foreign courts allow the judge discretion to award moral damages with no guidelines or caps. And some even have the authority to imprison individuals for negligent conduct causing a death, such as a company representative who has come to the court to give testimony in the case.
The defense in this case determined that applying the law of British Columbia would likely result in a dismissal of the case against Honeywell. The hope was that the court would correctly choose and apply the law of British Columbia, which does not allow the damages being claimed by the plaintiffs.
The Successful Result
First, the defendants successfully removed the case from Orange County, Texas, to the Federal Court, United States District Court for the Eastern District of Texas. After winning the battle over the plaintiff's effort to remand the case to state court, Honeywell then elected to request that the court apply the law of British Columbia and grant summary judgment, rather than request the court to dismiss based on forum non conveniens to be tried in British Columbia. And that is exactly what the court did.
Conclusion
International forum shopping has become commonplace. While the case illustrated above was about a single death, the implications are especially important in cases involving a mass disaster or accident resulting in multiple deaths or significant property damage. While taking a case to the country whose law would seem to apply may appear to be the logical choice, doing so may have unpredictable results apart from what's actually in the law. And given that U.S. courts may have the option to keep a case in the U.S. yet apply the law of another country, U.S. defendants should consider engaging experienced international defense counsel and keeping the case here rather than risking undesirable results.