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Attorneys for Bridgestone/Firestone Inc. and Ford Motor Co. have asked the 5th Court of Appeals to stop a Dallas court from hearing two mass tort actions involving 33 accidents and more than 180 plaintiffs from Venezuela and Mexico. A petition for writ of mandamus was filed on Aug. 20 in the 5th Court in Bellorin, et al. v. Bridgestone/Firestone, et al. and Castillo, et al. v. Bridgestone/Firestone, et al. “What’s at issue here is not opening the floodgates to citizens of other countries who, for whatever reason, want to file cases in Texas,” says Bob Schick, one of the attorneys representing the tire maker. The cases stem from accidents that the plaintiffs allege were caused by tread separations on the tires of vehicles involved in the crashes. The accidents caused 29 deaths, the plaintiffs allege in their response to the petition for mandamus. “If the court rules this case can be tried in a Texas court, it’s hard to imagine that cases involving accidents overseas could be tried in Texas courts,” says Schick, a partner in the Houston office of Vinson & Elkins. The Texas Legislature enacted a forum non conveniens law in 1993. Under Civil Practices and Remedies Code �71.051(a), a Texas court may stay or dismiss a claim brought by a foreign citizen if it finds that the claim should be heard in another forum. The tire maker and auto manufacturer allege in the mandamus petition that none of the tires or vehicles involved in the accidents at issue in the two cases was manufactured in Texas. “Plaintiffs’ ties to Texas are nothing more than a desire for a large jury verdict,” the defendants’ petition alleges. Mike Caddell, an attorney for the plaintiffs, alleges dozens of people are dead in Venezuela and Mexico because of the critical decisions made in the United States not to recall Ford Explorers equipped with Bridgestone/Firestone tires. Caddell, a partner in Houston’s Caddell & Chapman, cites copies of August 1999 memos sent by Carlos Maron, Ford’s development manager in Venezuela, to Ford officials in this country, informing them of accidents caused by Firestone tire blow-outs. Caddell alleges Maron asked for a recall in his memos, but the recall didn’t occur to almost a year later. “This is a U.S.-made problem,” Caddell says. Schick says decisions not to recall the tires may have been made. “But not one of them was made in Texas. Why didn’t they file these cases in Michigan or Ohio?” he asks. Don Lough, in-house counsel for Ford Motor Co. in Dearborn, Mich., says that fairness and common sense dictates that cases involving “foreign products, foreign accidents, foreign residents and foreign laws should be considered by foreign courts.” Lough also says that most of the witnesses are not in the United States. In the mandamus petition, the defendants said “conservative estimates” point to more than 350 relevant third-party witnesses in Venezuela and Mexico. Caddell says the cases were filed in Texas because Bridgestone/Firestone has tire-testing facilities in the state and nearby in Mexico. Operations for the testing facility in Acuna, Mexico, are directed by Texans in Del Rio, he says. Schick alleges that the tires at issue in the two cases weren’t tested at those facilities. Caddell disputes Schick’s allegation and cites statements made by Vinson & Elkins partner Michael Mengin, who represented Bridgestone/Firestone in the suit during a motion to remand hearing before U.S. District Judge Royal Furegeson on July 26, 2001, in Pecos. According to a transcript of the hearing, Mengis said the tires were tested at Smithers Transportation Test Center, a private testing facility in Pecos, and also at Bridgestone/Firestone testing sites in Fort Stockton and Acuna. IT WOULD BE UNPRECEDENTED The cases were filed in Reeves County in 2001 and twice went to federal court on the defendants’ motions to remand but were returned to the 143rd District Court in Pecos. Acting on the defendants’ motion, Judge Bob Parks of Pecos transferred the cases to Dallas in February. Judge David Godbey, then of the 160th District Court in Dallas, denied the defendants forum non conveniens motions in May. Godbey later was appointed to the U.S. District Court of the Northern District in Dallas. According to the mandamus petition, four new accidents with 29 new foreign plaintiffs were added to Bellorin after Godbey ruled on the motions. “I think that’s a precursor to what is to come,” says Schick, who predicts that more foreign accident cases will be added. Judge Carlos Lopez, of the 116th District Court, replaced Godbey on the case and denied the defendants’ motion to reconsider Godbey’s decision on Aug. 15. Cynthia B. Chapman, another Caddell & Chapman partner who represents the plaintiffs, says Bridgestone/Firestone and Ford delayed having motions for non conveniens heard until U.S. District Judge Sarah Evans Barker of Indianapolis ruled on their motions to dismiss Columbian and Venezuelan cases from the multidistrict tread-separation litigation on forum non conveniens grounds. Barker dismissed the motions in March. “We did a ton of discovery during all this, and here we sit waiting to go to trial,” Chapman says. Bridgestone/Firestone and Ford are asking the 5th Court to grant a mandamus so they don’t have to try the cases and then appeal. Schick alleges that trying the case could take more than a year and cost the defendants “millions and millions of dollars.” Caddell says it would be unprecedented for an appeals court in Texas to review the forum non conveniens issue on a mandamus petition. An issue raised in the petition is whether the mass tort actions fall under the “extraordinary circumstances” exception that the Texas Supreme Court established in 1996′s CSR Ltd. v Link. The court ruled 8-1 in CSR that exceptional circumstances, including the large number of claims to which an Australian asbestos manufacturer would be exposed, warranted mandamus relief if a trial court failed to grant the company a special appearance to contest the trial court’s assumption of personal jurisdiction over the case. The plaintiffs argued in their response that they could not pursue their claims against the defendants in a Venezuelan court. No direct relationship exists between any of the design defendants and any of the plaintiffs, which “explains why a product designer has never been held responsible for injuries to users of its product under Venezuelan law,” the plaintiffs said in the response. The plaintiffs also argued that they could not pursue claims against Smithers Transportation Test Center — one of the testing centers named as a defendant in the cases — in Venezuela. Smithers has said that it will not submit itself to the jurisdiction of Venezuelan courts and can’t be made to do so, according to the plaintiffs’ response. Lough alleges that the only reason the courts in Venezuela aren’t hearing the plaintiffs’ claims is because the plaintiffs chose not to file the cases there. Texas taxpayers will pay the tab for hearing those cases, he says. Barker, the Indianapolis judge who presides over the multidistrict litigation, said in In Re: Bridgestone/Firestone, that Venezuelan courts “are not available alternative forum.” According to Barker’s ruling, Article 40 of the State on Private International Law requires that both parties submit to a court’s jurisdiction. “That makes no sense,” Lough says. “If that were the law, there would be no doctrine of forum non conveniens.”

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