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An effort to stop a Dallas court from hearing two mass tort actions arising out of 31 auto accidents in Mexico and Venezuela is like the Energizer Bunny — it just keeps going and going and going. On March 27, the Texas Supreme Court denied a mandamus petition in In Re Bridgestone/Firestone North American Tire, et al. The tire manufacturer and Ford Motor Co. sought the mandamus to block a July 28 trial of one tire tread separation accident in which a death occurred. The claims stemming from that accident are included in Bellorin, et al. v. Bridgestone/Firestone, et al. Also on March 27, the high court dismissed as moot other motions filed by Firestone and Ford to prevent the Dallas court from hearing Bellorin and Castillo, et al. v. Bridgestone/Firestone, et al. Among those dismissed was a motion to abate the mandamus proceeding. The defendants argued in their mandamus petition that these cases present no significant connection, if any, to Texas. None of the tires or vehicles were manufactured, bought or maintained in the state, the defendants said. Houston attorney Mike Caddell and his wife and law partner, Cynthia Chapman, applaud the Texas Supreme Court’s decision, which they believe clears the way for the case to be tried this summer. When the cases were before Dallas’ 5th Court of Appeals in October 2002, the plaintiffs had argued in a response to the defendant’s motion to dismiss that the cases should be tried in Texas because two Texas-based defendants tested the models of the tires alleged to be defective. The defendants deny such testing occurred. The plaintiffs also contend that Mexican and Venezuelan laws would make it impossible to try such cases in those countries. Caddell says the issue raised in the bitter forum battle has been before four state district judges in Pecos and Dallas, twice before a U.S. district judge for the Western District in Midland, the 5th Court and the Texas Supreme Court. The cases, which involve the personal-injury and wrongful-death claims of 197 Mexican and Venezuelan plaintiffs, were first filed in Pecos in 2001. “Every single judge who has looked at this has rejected these [forum non conveniens] arguments,” Chapman says. But the fight continues. On March 31, Firestone asked Judge David Evans, of Dallas’ 193rd District Court, to reconsider the denial of the defendants’ motions to dismiss the foreign suits, which they contend do not belong in Texas courts. Under the state’s forum non conveniens statute — Civil Practice and Remedies Code � 71.051(a) — a claim brought by a foreign citizen may be dismissed if a court finds that it would be more appropriate for the claim to be heard elsewhere. Vinson & Elkins partner Marie Yeates of Houston, lead counsel for Firestone, says the Texas Supreme Court has not construed that provision since the Legislature enacted the forum non conveniens statute in 1993. “We are badly in need of an interpretation of forum non conveniens,” Yeates says. TOO MANY JUDGES? Yeates says her client’s efforts to have the cases dismissed have been complicated by frequent changes in judges. Under Rule 11 of the Texas Rules of Judicial Administration, a judge is assigned to hear all the tire cases in a judicial administrative region. So far, three judges have been assigned to these two cases since the cases were moved from Pecos to Dallas. Judge David Godbey, formerly of the 160th District Court in Dallas, initially drew that assignment and denied the defendants’ forum non conveniens motions in May 2002. Yeates says Godbey denied the motions based on a decision by U.S. District Judge Sarah Evans Barker of the Southern District of Indiana, who is overseeing the multidistrict tread-separation litigation (MDL) in the federal courts. In March 2002, Barker dismissed motions by Firestone and Ford to dismiss Colombian and Venezuelan cases from the MDL on forum non conveniens grounds. Barker held that a defendant’s consent to the jurisdiction of a Venezuelan court can be trumped if a Venezuelan plaintiff doesn’t also consent. That does not comport with Texas forum non conveniens standards, the defendants argued in the mandamus petition. Godbey subsequently left the state court bench to serve on the U.S. District Court for the Northern District of Texas. Judge Carlos Lopez, of Dallas’ 116th District Court, replaced Godbey as the Rule 11 judge and denied the defendants’ motion to reconsider Godbey’s decision in August 2002. Yeates says the mandamus action was directed at Lopez’s order. When Lopez left the bench late last month to become special counsel with Baron & Budd in Dallas, that left some “uncertainty” regarding the Texas Supreme Court’s reason for denying the petition for mandamus, she says. Although the plaintiffs filed an emergency motion asking the high court for a clarification, Caddell says he doesn’t believe there is anything uncertain about what the court did. Andrew Weber, the state supreme court’s clerk, spelled out what the court had done in a March 27 letter to the parties, he says. If the Texas Supreme Court didn’t think it had authority to consider a mandamus because Lopez was leaving the bench, the court could have granted the defendants’ motion to abate, Caddell says. Instead, the court dismissed as moot that motion and others filed by Ford and Firestone, according to Weber’s letter. On April 1, Evans agreed to consider the forum non conveniens issue and set a hearing in May. But Evans vacated that order the following day. The judge indicated in an April 2 letter that he decided against a rehearing after considering the Texas Supreme Court’s decision. Yeates says Firestone still has options if it wants to continue the fight. She says the tire maker could request a rehearing at the Texas Supreme Court or seek a mandamus directed at Evans’ order. Firestone also could ask Evans to reconsider the forum non conveniens issue, she says. However, Caddell contends that Firestone is out of options on this issue. “It’s over,” he says. Ford did not join Firestone in the motion asking Evans to reconsider the issue. Brown McCarroll partners Craig Morgan and Gaye Rothman of Austin, Ford’s attorneys, did not return two phone calls seeking comment by press time. Don Lough, an in-house attorney for Ford in Dearborn, Mich., also did not return a call seeking comment.

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