IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________
No. 01-40012
_____________________
JORGE LUIS MACHUCA GONZALEZ; MARTHA PATRICIA LOPEZ
GUERRERO, Individually And As Heirs And Representatives
Of The Estate Of Luis Pablo Machuca Lopez, Deceased,
Plaintiffs - Appellants,
versus
CHRYSLER CORPORATION, Etc.; ET AL.,
Defendants,
CHRYSLER CORPORATION, also known as Chrysler Motors
Corporation; TRW, INC.; TRW VEHICLE SAFETY SYSTEMS, INC.;
MORTON INTERNATIONAL, INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of Texas
August 20, 2002
Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In this forum non conveniens case, we first consider whether
the cap imposed by Mexican law on the recovery of tort damages
renders Mexico an inadequate forum for resolving a tort suit by a
Mexican citizen against an American manufacturer and an American
designer of an air bag. Holding that Mexico –- despite its cap on
damages –- represents an adequate alternative forum, we next
consider whether the district court committed reversible error when
it concluded that the private and public interest factors so
strongly pointed to Mexico that Mexico, instead of Texas, was the
appropriate forum in which to try this case. Finding no reversible
error, we affirm the district court’s judgment dismissing this case
on the ground of forum non conveniens.
I
In 1995, while in Houston, the plaintiff, Jorge Luis Machuca
Gonzalez (“Gonzalez”)1 saw several magazine and television
advertisements for the Chrysler LHS. The advertisements sparked
his interest. So, Gonzalez decided to visit a couple of Houston
car dealerships. Convinced by these visits that the Chrysler LHS
was a high quality and safe car, Gonzalez purchased a Chrysler LHS
upon returning to Mexico.
On May 21, 1996, the wife of the plaintiff was involved in a
collision with another moving vehicle while driving the Chrysler
LHS in Atizapan de Zaragoza, Mexico. The accident triggered the
passenger-side air bag. The force of the air bag’s deployment
instantaneously killed Gonzalez’s three-year-old son, Pablo.
Seeking redress, Gonzalez brought suit in Texas district court
against (1) Chrysler, as the manufacturer of the automobile; (2)
TRW, Inc. and TRW Vehicle Safety Systems, Inc., as the designers of
1
In this opinion, we refer to the plaintiffs collectively as
Gonzalez.
2
the front sensor for the air bag; and (3) Morton International,
Inc., as designer of the air bag module. Gonzalez asserted claims
based on products liability, negligence, gross negligence, and
breach of warranty. As noted, Gonzalez chose to file his suit in
Texas. Texas, however, has a tenuous connection to the underlying
dispute. Neither the car nor the air bag module was designed or
manufactured in Texas. The accident took place in Mexico, involved
Mexican citizens, and only Mexican citizens witnessed the accident.
Moreover, Gonzalez purchased the Chrysler LHS in Mexico (although
he shopped for the car in Houston, Texas). Because of these
factors, the district court granted the defendants’ identical
motions for dismissal on the ground of forum non conveniens.2
Gonzalez now appeals.
II
A
The primary question we address today involves the threshold
inquiry in the forum non conveniens analysis: Whether the
limitation imposed by Mexican law on the award of damages renders
Mexico an inadequate alternative forum for resolving a tort suit
brought by a Mexican citizen against a United States manufacturer.
We should note at the outset that we may reverse the grant or
denial of a motion to dismiss on the ground of forum non conveniens
2
In this opinion, we refer to the defendants collectively as
Chrysler.
3
only “where there has been a clear abuse of discretion.” Baumgart
v. Fairchild Aircraft Corp., 981 F.2d 824, 835 (5th Cir. 1993).
The forum non conveniens inquiry consists of four
considerations. First, the district court must assess whether an
alternative forum is available. See Alpine View Co. Ltd. v. Atlas
Copco AB, 205 F.3d 208, 221 (5th Cir. 2000). An alternative forum
is available if “the entire case and all parties can come within
the jurisdiction of that forum.” In re Air Crash Disaster Near New
Orleans, La. on July 9, 1982, 821 F.2d 1147, 1165 (5th Cir. 1987)
(en banc), vacated on other grounds sub nom., Pan Am. World
Airways, Inc. v. Lopez, 490 U.S. 1032 (1989). Second, the district
court must decide if the alternative forum is adequate. See Alpine
View, 205 F.3d at 221. An alternative forum is adequate if “the
parties will not be deprived of all remedies or treated unfairly,
even though they may not enjoy the same benefits as they might
receive in an American court.” In re Air Crash, 821 F.2d at 1165
(internal citation omitted).
If the district court decides that an alternative forum is
both available and adequate, it next must weigh various private
interest factors. See Baumgart, 981 F.2d at 835-36. If
consideration of these private interest factors counsels against
dismissal, the district court moves to the fourth consideration in
the analysis. At this stage, the district court must weigh
numerous public interest factors. If these factors weigh in the
4
moving party’s favor, the district court may dismiss the case. Id.
at 837.
B
1
The heart of this appeal is whether the alternative forum,
Mexico, is adequate.3
The jurisprudential root of the adequacy requirement is the
Supreme Court’s decision in Piper Aircraft Co. v. Reyno, 454 U.S.
235 (1981). The dispute in Piper Aircraft arose after several
Scottish citizens were killed in a plane crash in Scotland. Id.
at 238. A representative for the decedents filed a wrongful death
suit against two American aircraft manufacturers. Id. at 240. The
Court noted that the plaintiff filed suit in the United States
because “[U.S.] laws regarding liability, capacity to sue, and
damages are more favorable to her position than are those of
Scotland.” Id. The Court further noted that “Scottish law does
not recognize strict liability in tort.” Id. This fact, however,
did not deter the Court from reversing the Third Circuit. In so
doing, the Court held that “[a]lthough the relatives of the
decedent may not be able to rely on a strict liability theory, and
although their potential damage award may be smaller, there is no
danger that they will be deprived of any remedy or treated unfairly
3
It is undisputed that Mexico is an amenable forum because the
defendants have agreed to submit to the jurisdiction of the Mexican
courts.
5
[in Scotland].” Id. at 255. Thus, the Court held that Scotland
provided an adequate alternative forum for resolving the dispute,
even though its forum provided a significantly lesser remedy. In
a footnote, however, Justice Marshall observed that on rare
occasions this may not be true:
At the outset of any forum non conveniens inquiry, the
court must determine whether there exists an alternative
forum. Ordinarily, this requirement will be satisfied
when the defendant is "amenable to process" in the other
jurisdiction. In rare circumstances, however, where the
remedy offered by the other forum is clearly
unsatisfactory, the other forum may not be an adequate
alternative, and the initial requirement may not be
satisfied. Thus, for example, dismissal would not be
appropriate where the alternative forum does not permit
litigation of the subject matter of the dispute.
Id. at 255 n.22 (emphasis added)(internal citation omitted).
Citing the language from this footnote, Gonzalez contends that
a Mexican forum would provide a clearly unsatisfactory remedy
because (1) Mexican tort law does not provide for a strict
liability theory of recovery for the manufacture or design of an
unreasonably dangerous product and (2) Mexican law caps the maximum
award for the loss of a child’s life at approximately $2,500 (730
days’ worth of wages at the Mexican minimum wage rate). Thus,
according to Gonzalez, Mexico provides an inadequate alternative
forum for this dispute.
6
2
(a)
Gonzalez’s first contention may be quickly dismissed based on
the explicit principle stated in Piper Aircraft. As noted, there
the Supreme Court held that Scotland’s failure to recognize strict
liability did not render Scotland an inadequate alternative forum.
Id. at 255. There is no basis to distinguish the absence of a
strict products liability cause of action under Mexican law from
that of Scotland.4 Piper Aircraft therefore controls.
Accordingly, we hold that the failure of Mexican law to allow for
strict liability on the facts of this case does not render Mexico
an inadequate forum.
4
Although Mexico apparently recognizes strict liability
against the defendant users of a dangerous product, it does not
recognize strict liability against the manufacturer or designer of
a dangerous product. See art. 19 C.C.D.F; Symposium, Part-Five: A
Serious Accident Occurs in the Mexican Plant: Problems of Corporate
and Product Liability, 4 U.S.-MEX. L.J. 125, 128 (1996) (“[T]here
is no cause of action under Mexican law for an injured party to sue
a remote manufacturer or vendor, unless the plaintiff is in privity
of contract with the defendant or can prove the manufacturer’s or
the vendor’s negligence. Product liability is a distinctly United
States concept. . . . Mexican law does have a doctrine of strict
liability, but not of product liability. Under Mexico's strict
liability, the defendant is normally the user (whether owner, agent
or bailee) of an inherently dangerous mechanism, instrument,
apparatus or substance who, with his use, injures the plaintiff”)
(citation omitted). Similarly, Scotland at the time of the
pertinent events in Piper Aircraft did not have strict liability
for the design or manufacture of dangerous products. See DAVID M.
WALKER, THE LAW OF DELICT IN SCOTLAND, 614-615 (2d ed. 1981) (“Products
liability came to Scotland with the Consumer Protection Act of
1987, but this was more than a decade after the operative facts in
Piper.”).
7
(b)
Gonzalez’s second contention –- that the damage cap renders
the remedy available in a Mexican forum “clearly unsatisfactory” –-
is slightly more problematic. Underlying this contention are two
distinct arguments: First, Gonzalez argues that if he brings suit
in Mexico, the cap on damages will entitle him to a de minimis
recovery only -- a clearly unsatisfactory award for the loss of a
child. Second, Gonzalez argues that because of the damage cap, the
cost of litigating this case in Mexico will exceed the potential
recovery. As a consequence, the lawsuit will never be brought in
Mexico. Stated differently, the lawsuit is not economically viable
in Mexico. It follows, therefore, that Mexico offers no forum
(much less an adequate forum) through which Gonzalez can (or will)
seek redress. We address each argument in turn.
(i)
In addressing Gonzalez’s first argument, we start from basic
principles of comity. Mexico, as a sovereign nation,5 has made a
deliberate choice in providing a specific remedy for this tort
cause of action. In making this policy choice, the Mexican
government has resolved a trade-off among the competing objectives
and costs of tort law, involving interests of victims, of
5
Mexico (or, more correctly, the Mexican United States) is a
federal republic. To be precise, the limitation on tort damages at
issue in this case was enacted by the State of Mexico, one of the
member states of the Mexican United States.
8
consumers, of manufacturers, and of various other economic and
cultural values. In resolving this trade-off, the Mexican people,
through their duly-elected lawmakers, have decided to limit tort
damages with respect to a child’s death.6 It would be
inappropriate –- even patronizing -- for us to denounce this
legitimate policy choice by holding that Mexico provides an
inadequate forum for Mexican tort victims.7 In another forum non
conveniens case, the District Court for the Southern District of
New York made this same point observing (perhaps in a hyperbolic
choice of words) that “to retain the litigation in this forum, as
plaintiffs request, would be yet another example of imperialism,
another situation in which an established sovereign inflicted its
rules, its standards and values on a developing nation.” In re
Union Carbide Corp. Gas Plant Disaster at Bhopal, India in
December, 1984, 634 F.Supp. 842, 867 (S.D.N.Y. 1986), aff’d as
modified, 809 F.2d 195 (2d Cir. 1987). In short, we see no warrant
for us, a United States court, to replace the policy preference of
6
See 1 JORGE A. VARGAS, MEXICAN LAW: A TREATISE FOR LEGAL PRACTITIONERS
ANDINTERNATIONAL INVESTORS §§ 1.31-32 (1998) (describing how law is
made in Mexico).
7
As one legal scholar so aptly noted: “we should have a little
humility. . . . It is past time for us to get it through our heads
that it is not everyone but us who is out of step.” William L.
Reynolds, The Proper Forum for a Suit: Transnational Forum Non
Conveniens and Counter-Suit Injunctions in the Federal Courts, 70
TEX. L. REV. 1663, 1708-09 (1992) (internal quotation marks
omitted).
9
the Mexican government with our own view of what is a good policy
for the citizens of Mexico.
Based on the considerations mentioned above, we hold that the
district court did not err when it found that the cap on damages
did not render the remedy available in the Mexican forum clearly
unsatisfactory.
(ii)
We now turn our attention to Gonzalez’s “economic viability”
argument –- that is, because there is no economic incentive to file
suit in the alternative forum, there is effectively no alternative
forum.8
8
As a point that might fall in the technical category, the
economic viability of a lawsuit may be more appropriate for
consideration as a private interest factor, after the court has
made the threshold determination that the alternative forum is both
amenable and adequate. This view would seem to accord with the
Eighth Circuit’s decision in Lehman v. Humphrey Cayman, Ltd., 713
F.2d 339 (8th Cir. 1983). Lehman involved an Iowa plaintiff, suing
in Iowa district court for the death of her husband, an Iowa
citizen, in the Cayman Islands. In reversing a dismissal based on
forum non conveniens, the Lehman court evaluated the private and
public interest factors for and against dismissal. As one of the
factors, the Lehman court considered the economic viability of the
suit in the Cayman Islands, holding that “[t]he court must be alert
to the realities of the plaintiff’s position, financial and
otherwise, and his or her ability as a practical matter to bring
suit in the alternative forum.” Id. at 346. The Lehman court
considered the plaintiff’s willingness and ability to bring the
lawsuit in the alternative forum in the context of all other
private and public interest factors. See also Kryvicky v.
Scandinavian Airlines Sys., 807 F.2d 514, 517 (6th Cir. 1986)
(same).
We neither gainsay nor approve the holding of Lehman. We only
note that it has no fit to the facts in this case where there are
no other private or public interest factors pointing toward Texas
10
The practical and economic realities lying at the base of this
dispute are clear. At oral argument, the parties agreed that this
case would never be filed in Mexico. In short, a dismissal on the
ground of forum non conveniens will determine the outcome of this
litigation in Chrysler’s favor.9 We nevertheless are unwilling to
hold as a legal principle that Mexico offers an inadequate forum
simply because it does not make economic sense for Gonzalez to file
this lawsuit in Mexico. Our reluctance arises out of two practical
considerations.
First, the plaintiff’s willingness to maintain suit in the
alternative (foreign) forum will usually depend on, inter alia, (1)
whether the plaintiff’s particular injuries are compensable (and to
what extent) in that forum; (2) not whether the forum recognizes
some cause of action among those applicable to the plaintiff’s
case, but whether it recognizes his most provable and compensable
and away from Mexico as the proper forum to try this case.
In passing, it should be noted that to the extent that
economic viability is undermined by the cost of securing an
attorney, our circuit has held that “the fact that contingent fees
are legally permissible in the United States but legally
impermissible in England is not a factor that controls or even
significantly influences the forum non conveniens determination.”
See Coakes v. Arabian Am. Oil Co., 831 F.2d 572, 575 (5th Cir.
1987).
9
This fact is not unique to this lawsuit. A survey found that
between 1945 and 1985, of 85 transnational cases dismissed on the
ground of forum non conveniens, only four percent ever reached
trial in a foreign court. See David Robertson, Forum Non
Conveniens in America and England: “A Rather Fantastic Fiction”,
103 L. Q. REV. 398, 418-19 (1987).
11
action; (3) similarly, whether the alternative forum recognizes
defenses that might bar or diminish recovery; and (4) the
litigation costs (i.e., the number of experts, the amount of
discovery, geographic distances, attorney’s fees, etc.) associated
with bringing that particular case to trial. These factors will
vary from plaintiff to plaintiff, from case to case. Thus, the
forum of a foreign country might be deemed inadequate in one case
but not another, even though the only difference between the two
cases might be the cost of litigation or the recovery for the
plaintiff’s particular type of injuries. In sum, we find
troublesome and lacking in guiding principle the fact that the
adequacy determination could hinge on constantly varying and
arbitrary differences underlying the “economic viability” of a
lawsuit.
Second, if we allow the economic viability of a lawsuit to
decide the adequacy of an alternative forum, we are further forced
to engage in a rudderless exercise of line drawing with respect to
a cap on damages: At what point does a cap on damages transform a
forum from adequate to inadequate? Is it, as here, $2,500? Is it
$50,000? Or is it $100,000? Any recovery cap may, in a given
case, make the lawsuit economically unviable. We therefore hold
that the adequacy inquiry under Piper Aircraft does not include an
evaluation of whether it makes economic sense for Gonzalez to file
this lawsuit in Mexico.
12
C
Having concluded that Mexico provides an adequate forum,10 we
now consider whether the private and public interest factors
nonetheless weigh in favor of maintaining this suit in Texas. As
noted, the district court concluded that the public and the private
interest factors weighed in favor of Mexico and dismissed the case
on the ground of forum non conveniens. Our review of this
conclusion is restricted to abuse of discretion. See Alpine View,
205 F.3d at 220.
The district court found that almost all of the private and
public interest factors pointed away from Texas and toward Mexico
as the appropriate forum. It is clear to us that this finding does
not represent an abuse of discretion. After all, the tort victim
was a Mexican citizen, the driver of the Chrysler LHS (Gonzalez’s
wife) is a Mexican citizen, and the plaintiff is a Mexican citizen.
The accident took place in Mexico. Gonzalez purchased the car in
Mexico. Neither the car nor the air bag was designed or
manufactured in Texas. In short, there are no public or private
interest factors that would suggest that Texas is the appropriate
forum for the trial of this case.
III
10
As noted, the parties concede that Mexico represents an
amenable forum.
13
For the foregoing reasons, the district court’s dismissal of
this case on the ground of forum non conveniens is
AFFIRMED.
14