Piper Aircraft Company v. Reyno – Oral Argument – October 14, 1981

Media for Piper Aircraft Company v. Reyno

Audio Transcription for Opinion Announcement – December 08, 1981 in Piper Aircraft Company v. Reyno


Warren E. Burger:

Mr. Gardner, we have a pretty narrow question here, and we hope for some enlightenment on that narrow question.

Warner W. Gardner:

I have two minutes and 56 seconds in which I hope to make six categorical propositions which I hope further will add some enlightenment to this narrow question.

One, I was not able to answer the question of Justice Stevens as to product liability cases.

At Page 9 of our reply brief, we list seven or eight product liability cases dismissed for forum non-convenience.

Two others cited in our briefs… I will not give the citations here… are the Michell and the Harrison cases.

The case of Canada Malting was mentioned here.

We are of the view there is no way the court below can be affirmed without overruling Canada Malting, which very clearly dismissed a case despite seriously adverse changes in the law.

I don’t wish to resume my quarrel with the court below, but in 38 pages they never mentioned Canada Malting.

Mr. Cathcart explained correctly that the suit in Scotland does not… was not brought against the manufacturers.

His statement should he supplemented by the fact that in the United Kingdom there is a suit brought by the Pyrex estate against the American manufacturers over whom jurisdiction has been asserted.

The estoppel point, which has figured here and there because of statements made in the District Court of California, decided adversely to the Respondent by two courts below.

There was no petition for certiorari based upon that nor any statement in the brief in opposition relying upon it.

We think it is a little late to bring it up at this point.

What to me was a critical sentence in the opinion of the Court below lay just one sentence beyond the extracts which Justice White read from Page 131.

The last sentence of the paragraph on that page is,

“The District Court’s wide discretion may not serve the defendants as a burden-shifting device on appeal from an order in their favor.”

In short, discretion of the District Court is given great weight if it be exercised in favor of the plaintiff, not otherwise.

The last and brief sentence is that the statements that the court below considered all factors under Gilbert is flatly wrong.

If you read the public factors enumerated by the District Court, you will find them ignored by the Court of Appeals, except for the one factor which is categorically described on Page 139.

Warren E. Burger:

The case is submitted.

We will hear arguments next in Piper Aircraft against Reyno and the related case.

Mr. Fitzsimons, I think you may proceed whenever you’re ready.

James M. Fitzsimons:

Thank you.

Chief Justice Burger, and may it please the Court, the order which permits us to come before this Court today restricts the appeal to the sole question of whether a federal court action brought by a non-resident foreign plaintiff against an American defendant, whether in that type of action the plaintiff may defeat a motion to dismiss brought on the ground of foreign non-convenience merely by showing that the substantive law that would be applied if the case were litigated in that plaintiff’s own court would be different or less favorable than it would be if it were tried here in America.

The factual background of this case is quite significant.

In 1976 there was a small six-seat aircraft that crashed into the mountains of Scotland.

It was on a charter flight from England to Scotland, and the crash resulted in the deaths of all six people on board; five passengers and the pilot.

All of these people were Scottish citizens.

The aircraft had been owned, operated and maintained for several years prior to the accident by Scottish interests, and the pilot was employed by a Scottish company.

The aircraft was registered with the British authorities, and the pilot was licensed by the Scottish authorities, and the accident was investigated by the British Department of Trade.

James M. Fitzsimons:

The Department’s proposed report was the subject of an evidentiary hearing which was conducted by a review board headed by Mr. and later Lord Jauncey, who was assisted, again, by two technical advisors from Scotland.

Substantial documentary evidence went before this hearing, and some 13 witnesses testified, most of whom were technicians from Great Britian.

The hearing took place in Edinburgh, Scotland, and as I say, it lasted for nine days.

In addition, Lord Jauncey spent a day in Farnsborough, England, inspecting the wreckage of the aircraft.

Presently, what remains of the wreckage is still at Farnsborough.

As a result of the accident, a California resident, Gaynell Reyno, has brought this action to recover for the heirs and next of kin of the decedents, that is, the passenger decedents, and her complaint alleges negligence and also strict liability.

Although she sues as the personal representatives of the estates of these passengers, she is in no way related to them.

At the time of bringing this action, all of the heirs and survivors of the deceased passengers were Scottish.

Gaynell Reyno was a resident of the state of California, and a secretary in the office of the attorney for the plaintiffs.

The only connection which the United States has with this accident at all was the fact that some seven years or so prior to the time that the accident occurred, the aircraft had been manufactured in the United States by Piper Aircraft Company, and at the time of its manufacture, it was equipped with a propeller that was manufactured by Hartzell in Ohio.

Almost immediately after its manufacture, the aircraft was sold to an interest in Ohio, and by some chain of events not known to defendants, found its way over to Scotland.

On the motion of the defendants, the United States District Court for the Middle District of Pennsylvania granted an order dismissing this action on the ground of foreign non-convenience, and it conditioned that dismissal, as courts generally do, on the defendants waiving any statute of limitations defense they might have and agreeing to submit to the jurisdiction of the courts in Scotland.

It might be well to point out here at this particular time that these same plaintiffs have brought actions in Scotland against the operating company, against the owner of the aircraft, two Scottish interests, against the pilot, pilot’s estate, a Scottish interest, and indeed, against the British Civil Aviation Authority.

And the pilot’s estate himself has also started an action over in Great Britain.

In the memorandum opinion which accompanied the order, the district court considered the factors set forth by this court in the seminal foreign non-convenience case of Gulf Oil against Gilbert and its progeny.

And it concluded that the defendants had shown overwhelming reasons for a foreign non-convenience dismissal.

And that court also said that it would be no less than an abuse of discretion on its part if it did not dismiss on the ground of foreign non-convenience, as the Gilbert criteria, quote, “overwhelmingly point to dismissal”.

The district court weighed all the private interest factors set forth in Gilbert, and found that they all clearly pointed to trial in Scotland.

The district court also weighed the public interest factors laid down in Gilbert, and similarly concluded that all of these, too, favored the trial in Scotland.

And in considering these public interests, the district court said that uppermost in its mind was the fact that a trial could be complex and confusing to a jury because it would have to apply the rule of law of Scotland to Hartzell and the rules of liability law of Pennsylvania to Piper.

Mr. Fitzsimons, let me get a little more background.

This suit was instituted in California, was it not?

James M. Fitzsimons:

Was instituted in California and sent to Pennsylvania on a 1404 transfer.

By whose motion?

James M. Fitzsimons:

By the motion of the defendant, defendant Piper.

Hartzell, at that time, made a motion to dismiss because it was not subject to the jurisdiction of the court.

Is your client a Pennsylvania corporation?

James M. Fitzsimons:

They are a Delaware corporation, I believe, Your Honor.

Is Hartzell a Pennsylvania corporation?

James M. Fitzsimons:

They are.

James M. Fitzsimons:

But the principal place of business of Piper is in Pennsylvania, and that’s where this aircraft was manufactured.

So that in effect, you accomplished one transfer, and then sought a second.

James M. Fitzsimons:

Yes, Your Honor, and I believe that that was required because the court over in California had no jurisdiction to pass upon the situation with respect to Hartzell where jurisdiction did not lie.

And the district court found that this did not constitute any reason why it should not be heard.

In any event, the circuit court also found that the product liability law of Scotland would not apply to Hartzell, but that indeed, the law of Pennsylvania would apply to both.

And what the court said was this: the court held that if the case were transferred over to Scotland, that the Scottish law would apply, and the plaintiffs would lose their cause of action for strict liability and that this was impermissible.

The Third Circuit cited DeMateos against Texaco, Inc. as authority, and it held that a dismissal for foreign non-convenience, like a statutory transfer under 1404(a), should not, despite its convenience, result in a change in the applicable law.

Would you also say that in Scotland there would be no trial by jury?

James M. Fitzsimons:

I’m not certain that there would not be a trial by jury in Scotland, Your Honor.

I know that there would not be in England, but I’m not certain about that subject in Scotland.

Where do you… where is the critical passage where you claim the court of appeals said that the change of law would… is the crux of their decision?

James M. Fitzsimons:

Oh, they did not say in so many words that it is the crux of their decision, but they started right up front, Your Honor, by discussing the question of law and what they said, in effect, was, that was the only public factor that they considered, and then at the end of their opinion they said, we don’t have to consider any others.

And I refer the Court to A 139.

As I read the court of appeals opinion, it started right out and reviewed all of the factors that the district court had considered in dismissing, and differed with the district court on every single factor, Is that right or not?

James M. Fitzsimons:

Not the way I read the decision.

The way I read the–

You say you think that if they hadn’t thought what they did about the change of the law, that they would have approved the dismissal?

James M. Fitzsimons:

–I believe that they should have, Your Honor.

Well, I know, but you think they would have?

I thought they disagreed with the district court on every single factor.

James M. Fitzsimons:

Mr. Justice White, the way I read that decision is that they considered three private factors; convenience of witnesses, compulsory processes interpleader and view of the premises.

And then one public–

And found that none of them would warrant the dismissal.

James M. Fitzsimons:

–That’s right.

And then one public… well, that’s in view of the fact that there would be the change of the law, Your Honor.

That’s inherent in the decision.

And on the public side, they just took the applicable law only, just that one.

So they did not go through every one that the district court had gone through.

In any event, Your Honor, the decision–

I had the same problem Justice White did, frankly.

I thought they were saying that the district court was wrong in thinking the jury would be confused by the foreign law and the differences in law, things of that nature.

Rather than relying entirely on this point.

James M. Fitzsimons:

–The circuit court clearly held that the law which would be applied to both defendants would be the Pennsylvania law.

I understand that.

James M. Fitzsimons:

And the court did say in so many terms, so many words rather, that you cannot have a dismissal where that would work a change in the law.

Where do they say that?

Where is that?

James M. Fitzsimons:

They say that, Your Honor, and I will show it to you, at… it’s starting on 139 of the Appendix.

“Even under the district court’s choice of law analysis requiring a mixture of American and Scottish law, it is apparent that the dismissal would work a change in the applicable law so that the plaintiff’s strict liability claim would be eliminated from the case. “

“But this Court has held that a dismissal for foreign non-convenience, like a statutory transfer, should not, despite its convenience, result in a change of the applicable law. “

“Only when the American law is not applicable or when that foreign jurisdiction would, as a matter of its choice of law, give the plaintiff the benefit of the claim to which she is entitled here– “

But the court held that the district court was wrong on this.

It says,

“Even under the district court’s choice of law analysis. “

Then it went on to say what you said.

But the court of appeals said the district court was quite wrong in its choice of law analysis.

I understand that that’s what the circuit court says, but they nevertheless–

–Well, they went ahead and nevertheless said what you say, but what if they were right that it’s the American law that governs here?

James M. Fitzsimons:

–Your Honor, even if that were true, the inequities that would be involved that the district court did not treat with or treated with improperly, certainly should have called for a dismissal.

That may be so, but that’s a different point, that’s a different point.

Where does the court of appeals say that if there was a transfer or if there was dismissal, that the Scottish law would apply if the case were tried in Scotland, even though under their analysis the law of Pennsylvania would apply?

James M. Fitzsimons:

Your Honor, I cannot point to that exactly but I know that that was a finding on the part of the district court where the district court said–

I know, but how about the court of appeals–

James M. Fitzsimons:

–I don’t think the circuit court… let me see.

–Let’s assume that the Scottish courts would apply the American law, like the court of appeals held should be applicable.

James M. Fitzsimons:

If Scotland would do that?


Then there should be a transfer, there should be a dismissal, shouldn’t there?

James M. Fitzsimons:

If they were going to apply that law.

In any event there should be, Your Honor, because the basic fairness of this rule the way it is right now is briefly as follows.

James M. Fitzsimons:

It requires the Scottish plaintiff to come over here to America to prosecute the case.

It handicaps the defendant in that the defendant cannot add the parties that it needs to, the parties that the district court found to be necessary parties to be impleaded, such as the owner, the operator and the estate of the pilot.

Should the defendant, so handicapped, lose, it now… an American defendant has to go all the way over to Scotland.

That’s right, and–

James M. Fitzsimons:

To press his action, and that is just basically unfair, Your Honor.

–Well, the court of appeals didn’t think it was.

James M. Fitzsimons:

Not in light of the fact that their basis, that the Pennsylvania law… that there could not be a change in the law, and I say that’s the hingepin of their decision.

Warren E. Burger:

Mr. Gardner?

Warner W. Gardner:

Mr. Chief Justice, and may it please the Court, if I may continue where my Brother Fitzsimons half left off in terms of the decision below, I believe it should be pointed out first that the opinion of the court below was very loosely structured.

It is difficult to follow.

But if one reads what it said and reads as it decided, it is comparatively clear.

It went first to the so-called private factors discussed by the district court.

As to three of them, it found the district court in error in relying upon them for grounds for transfer.

It did not say that they were grounds for retaining the case in Pennsylvania.

They had a weight of zero.

One of them, the inability of the defendants to implead those in Scotland, whom we believe were responsible for the accident, the court said the district court erred in assigning it great weight.

It was entitled to weight, the court said, but not so much.

We’re left then, on the private factors, with all being given the weight of zero and one being given a lesser weight but still weight toward dismissal.

We turn to the public factors enumerated in the Gilbert case.

The court undertook to examine them all.

It got, if I may say so, bewitched by the intricacies of the choice of law problem, and ended up with the belief that the Pennsylvania law could be applied by the Pennsylvania court–

Mr. Gardner, this may be as appropriate a place as any for me to ask you questions on my mind in its language from Gulf Oil Corporation v. Gilbert on page 508 where the court says,

“Factors of public interest also have a place in applying the doctrine. “

“Administrative difficulties follow for courts where litigation is piled up in congested centers instead of being handled at its origin. “

“Jury duty is a burden that ought not be imposed upon the people of a community which has no relation to the litigation. “

Isn’t foreign non-convenience not just a doctrine to be fought out between the plaintiffs and the defendants, but doesn’t the federal judicial administration have a stake in it?

Warner W. Gardner:

–It obviously has, sir.

The common formulation, the shorthand formulation, for the many factors enumerated by Justice Jackson is the convenience to parties and the interests of justice.

All those factors, which you have just enumerated, Your Honor, are a part of the complex collection of factors that should be balanced.

All were forgotten by the Third Circuit.

Warner W. Gardner:

It reached the conclusion that there would be an adverse change in law if the case were filed in Scotland, and categorically said at pages 139 and 140 that that was sufficient to prevent grant of the motion.

Adverse to the plaintiff.

Warner W. Gardner:

Adverse to the plaintiff.

At page 156 of the Joint Appendix, in its concluding paragraph, it said, as the policy interests of Pennsylvania and Ohio, which it relied to determine that Pennsylvania law would be applied, point to trial here, all other factors will point similarly.

In short, it considered none but the choice of law problem.

The only place in the whole 38 pages below where the decision is explained, is the one paragraph on 139 and 140.

After the review of private factors, just drifted off, no conclusion was drawn.

As I’ve said, the only conclusion that could be drawn from the private factors was a weak, in the view of the court below, factor pointing toward dismissal.

Was that entirely clear?

Are there processes–

Warner W. Gardner:

Nothing in this opinion is entirely clear, sir.

–I’m just wondering in this body of law, are there cases in which a manufacturer has been sued for product defect in his home office where the product is manufactured, where he has ever gotten dismissal on the foreign non-convenience ground?

Warner W. Gardner:

Yes, sir.

There are not very many, are there?

Warner W. Gardner:

There haven’t been all that many product liability cases.


I could imagine this motion being made by the defendants that could have been brought in Scotland, on the ground that there are witnesses and relevant records and so forth at the home office.

Warner W. Gardner:

–The difference between a suit in Scotland and a suit in Pennsylvania is that in Scotland both parties can try their case.

The defendant will, and has no objection to having the dismissal so conditioned, transport to Scotland all of its witnesses, all of its records if they wish to try out product liability on an aircraft seven years old.

Well, the age of the case is partly because it was originally filed in California and transferred.

Warner W. Gardner:

Hartzell was not sued in California, were not served properly.

The defendants cannot try out negligence of the air taxi, of the pilot, of the owner and maintenance in the United Kingdom and in Scotland.

Is that all a defense if the product was defective?

Warner W. Gardner:

We can assume so, I believe, that if the product were defective, it surely was joined, or such is our position, by negligence on the part of those who were maintaining and operating the aircraft.

We cannot assume and say therefore, the defendants cannot try their case, that there was no negligence.

And we cannot try our case without the compulsory process.

None of the Scottish witnesses would willingly testify.

Mr. Gardner, I take it that one of the questions here is not whether the court of appeals was right in its choice of law conclusions.

Warner W. Gardner:

It adheres in the question–

Well, certainly you didn’t expressly raise the question.

Warner W. Gardner:

–It’s discussed in our brief.

In the event the Court wished to examine the premise.

If we wish to.

I don’t know that we particularly wish to.

Warner W. Gardner:

In that case, it’s not here.

Well, let me ask… if it isn’t here, if we judge this case on the basis that the court of appeals was correct in saying that if the case were tried in America that the state law, the American law would apply.

If we judge it on that basis, then what evidence is there, or… I’ll put it this way.

Are you in agreement, or all the parties in agreement that if the case shifted to Scotland that the American law would not apply?

Warner W. Gardner:

That is my belief, sir.

That’s your belief, but did the court of appeals say so?

Warner W. Gardner:

The court of appeals so stated.

And are the–

Warner W. Gardner:

You’re asking me to–

–No, I can ask the other side and I certainly shall.

Warner W. Gardner:

–Yes, I qualified my answer.

But your view is that the courts there would not… would apply Scottish law rather than American.

Warner W. Gardner:

We agree… that’s one of the few points in those 38 pages that we agree with.


And where do they say that?

Warner W. Gardner:

–At page 137, 139 and 147.

The discussion is not connected; these are isolated sentences.

But you will find between those three references the statement that the Scottish courts would apply lex loci delicto to choose the law and that udder Scottish law there would he no strict liability, but rather negligence.

I think everybody agrees with that, but the question is whether they would apply the Scottish law.

Warner W. Gardner:

I go back, then, to the earlier statement that the Court said, I believe correctly, that the Scottish courts apply the doctrine lex loci delicto, would apply the law of the place of the accident, and if they’re like any court, if they were captured to apply another law, they would look at the place of residence of the plaintiffs and find that, too, to be Scotland.

There is no possible doubt–

Not like any other court because the court of appeals of the third circuit doesn’t do that.

Warner W. Gardner:

–I will amend my statement, sir, to say–

All except the court of appeals of the third circuit.

Warner W. Gardner:

–Like most courts is perhaps the kindest way to phrase it.

I don’t find the statement of the court of appeals that you referred to very categorically, Mr. Gardner.

Warner W. Gardner:

It’s not categorical, sir, but if you’ve read those three sentences–

Well, I have to read three pages first before I find the sentences.

Warner W. Gardner:

–I wonder if I may help.

You may.

One particular sentence, if you’ll take page 137 and help us focus on that.

I read it and–

Warner W. Gardner:

Start at the beginning of the paragraph on the bottom which states that under the applicable choice of law rules, the American or Scottish law would apply.

–Well, but they’re reciting the arguments rather than stating their view.

At least, so it seems to me, although somewhat ambiguous.

Warner W. Gardner:

If you look at page 139, I must have thrown in 137 as the introductory part of it.

Page 139, the beginning of the last paragraph is reasonably categorical, relating the affidavit of Scottish counsel, to the effect that the Scottish–

You take it as a conclusion of the court beginning,

“And therefore, Scotland probably would apply its own law to all claims. “

You suggest we read that as their holding.

Warner W. Gardner:

–I think so.

When you come to page 147, which is my third reference, you’ll find that the court assumes that there would be a conflict between American strict liability and the Scottish negligence law if it had not been for its application of the so-called governmental interests.

I have not been able to remove my feet from the quagmire of the decision below, and I would like to save a few minutes for rebuttal, if the Court permits, I will save my remaining time for the rebuttal.

I refer the Court, please, to our briefs for our position on the law.

Warren E. Burger:

Mr. Cathcart?

Daniel C. Cathcart:

Mr. Chief Justice, and may it please the Court, the–

I take it you don’t have the same difficulties that your friends have with understanding this opinion.

Daniel C. Cathcart:

–No, sir, I find it to be a very, very fine and well-written and well-reasoned opinion.

I’m sure.

0 [Generallaughter.]


But let’s address the clarity of it, and tell us where they hold what you say they hold.

Daniel C. Cathcart:

I say they hold that when applying the factors of Gulf Oil versus Gilbert, which have been applied since 1947 in cases of this nature, they have no trouble finding an abuse of discretion on the part of the district court judge, and this carefully-written opinion examines each one of those factors and makes it very clear that the case turns on an abuse of discretion; it does not turn on the question of foreign law.

If we look at page 4 of the decision,… I’m sorry I don’t have it referenced as to the index which accompanied our briefs.

But the court language on page 4 makes it very clear–

Where will we find it?

Is that in your–

Daniel C. Cathcart:

–It’s in the appellate decision, and I can quickly find it because it’s very early.

–In the joint appendix?

Daniel C. Cathcart:

In the joint appendix, yes.

And where will we find the carefully-written opinion of the Third Circuit?

Daniel C. Cathcart:

That’s a matter of qualitative judgment which I find it to be a very thorough analysis.

You claim it begins at page 118 of the appendix?

That’s where the opinion begins?

Daniel C. Cathcart:

It’s just a little bit farther into the opinion, if I can find the exact language wherein the court indicated that the trial judge abused his discretion in dismissing the action.

And the court went on to say, in quotes,

“Subsidiary but arguably crucial to this second point is the claim– “

I wish I knew where you are reading.

Daniel C. Cathcart:

–All right, let me see if I can quickly find that for you in the appendix.


I see, at page A-120, I guess in the Consolidated Joint Appendix.

Page A-120, the last paragraph before you get to Roman Numeral I.

“The trial judge abuses discretion in dismissing the action. “

That’s just reciting what the claim is.

That’s just a contention.

Daniel C. Cathcart:

That is correct.

There is, I believe, on the fourth page,… and if I could just count it… a copy of the decision.

Maybe the subsidiary sentence is not part of the contention.

It’s hard to tell.

Daniel C. Cathcart:

It is on page A-120 of the decision in the second complete paragraph.


“In this court, Reyno raises two major contentions? “

Daniel C. Cathcart:

Yes, sir, that is where I find it.

And those are–

That merely describes the contention; it doesn’t describe the holding.

Daniel C. Cathcart:

–Yes, sir, that is correct.

Daniel C. Cathcart:

But the holding of the court, as we go through the decision, was based upon a careful examination of every one of the Gulf Oil v. Gilbert factors and a weighing of these in concluding that we have in this case an abuse of discretion on the part of the district court judge.

And based upon that, the case turned.

Now, the court went on to indicate that where American law applies, a forum non-convenience dismissal should not be granted.

And in that instance, in looking through the cases cited by the petitioners here,–

Well, on page 131 it says,

“The standard of review is one of abuse of discretion, but if the trial court has not held the defendants to their proper burden or has clearly erred in weighing the factors, the equivalent of an abuse of discretion has been demonstrated. “

“Discretion must be exercised within the applicable standards. “

And then the court goes on to the applicable factors and disagrees with the district court.

Daniel C. Cathcart:

–That is correct in every instance.

What law do you say applies to the claims of the negligence of the pilot?

Daniel C. Cathcart:

The law as to the negligence of the pilot may very well be governed by Scottish law, but the negligence of the pilot in a products liability action is not a defense.

And therefore, we may not need to have the trier of the fact judge by any standard his negligence.

The plaintiff in this case has the burden of proof under the law, the domestic American law of products liability, of establishing fault, either under restor or sui statement of tort 2nd 402 2nd, or under a variation thereof.

How old was this aircraft?

Daniel C. Cathcart:

The aircraft was several years old.

I can’t tell the Court exactly how old it is, but I believe five or six years old.

Six years old.

Daniel C. Cathcart:

But the distinction I’d like to draw for you, Mr. Chief Justice, is that this is a design defect case.

The plaintiffs are alleging that the design of the aircraft was a proximate cause of the accident, and that that design was defective.

So we’re going beyond attacking one item; that is, that there was a defect in the manufacture.

Is there anything in this record that shows how many air hours were logged in this aircraft?

Daniel C. Cathcart:

There is nothing in the record as of this moment because we have been dealing with procedural matters and not with discovery matters.

I see.

I raise that because whether this is or would turn out to be a product liability case or a negligence case in terms of the pilot error, is not very clear now, is it?

Daniel C. Cathcart:

It’s clear what our burden must be in order to prevail against the manufacturer, since we represent the estates of passengers on board the airplane.

What’s the connection of Reyno with the passengers on board the airplane?

Daniel C. Cathcart:

Gaynell Reyno is the nominal party plaintiff who was appointed by the Los Angeles County Superior Court as personal representative of the estate.

She, at the time, was a secretary within my law firm and she is not a real party in interest.

She was appointed because under California procedural law, an action for wrongful death can be brought in the names of the heirs; it also can be brought on behalf of the heirs by the personal representative of an estate.

Since we do have choice of law issues here as to what wrongful death statute does apply, or at least had to at the time that this case began, we had to choose or elect in which form to bring the action.

But don’t you run up there, when you get into the federal court, that there are public factors involved, too, where perhaps the federal courts could be better utilized for matters of more directly federal concern than a secretary in a law office acting as the executor for parties in a private damage action.

Daniel C. Cathcart:

She certainly is only a nominal plaintiff, and therefore, her interest is only that of occupying a title in discharging a court-appointed responsibility.

But the real parties in interest are people who have lost their breadwinners, and it’s a matter which should be of great concern to a federal court, and this case–

But they’re all in Scotland, aren’t they?

Daniel C. Cathcart:

–They’re all in Scotland.

And they could sue in Scotland.

Daniel C. Cathcart:

They could sue in Scotland.

They may or may not get jurisdiction, but the defendants, as they typically do in cases of this nature, have agreed to waive statutes of limitations and to make themselves subject to the jurisdiction of a foreign court because of the obvious advantages which inure to them under different law, different standards and lack of a trial by jury.

And there’s no question, one of the attractive features besides the location of a substantial quantum of proof as to a design defect being right at the manufacturer’s place of business is the fact that, I still believe and I think my clients belief, our system of justice is without equal in our system of determining what is just and adequate compensation for real losses.

So what you want to… you wanted to establish a principle that anybody injured in any nation on the face of this earth, injured by a product made in the United States, can sue in the United States.

Daniel C. Cathcart:

I’m not asking… no, sir, I am not asking–

Our justice isn’t that broad now, is it?

Daniel C. Cathcart:

–I don’t think it should be that broad and that’s what I am not seeking here.

Well, aren’t you trying?

You’re going to carry it at least to the United Kingdom.

Daniel C. Cathcart:

No, sir, I’m not trying to do that, Justice Marshall.

I’m trying, under the facts of this case, to demonstrate the right of people who indeed are aliens to sue a U.S. manufacturer, in this case, two U.S. manufacturers, for claimed defects in their products which, by happenstance, because of an airplane being what it is, an object which can and can be anticipated to go to many jurisdictions–

Wouldn’t that apply to a toy cart in Russia if it was made in the United States?

Daniel C. Cathcart:

–It might, if we went through all the Gulf Oil v. Gilbert factors and concluded that this was an appropriate place to sue, and that the defendant, under the facts situation, did not meet its burden.

I’m certainly not trying to ask this Court, as I believe the petitioners are, to come up with new law, a new doctrine, that aliens should not be allowed to bring actions for products liability in this country.

And I think that’s the way… even though the issue was quite limited under which certiorari was granted, the briefs have been expanded to encourage this Court to make such a finding.

I don’t believe we should close the doors–

Wouldn’t the Third Circuit, in Justice Marshall’s example, the Third Circuit come to the same conclusion that it did with respect to the applicable law?

It may not with respect to the transfer factors, but with respect to the applicable law, it would hold that the American law applies in Justice Marshall’s example, the toy in Russia made in the United States.

Daniel C. Cathcart:

–Yes, the Third Circuit might very well find–


Would, wouldn’t they?

Daniel C. Cathcart:

–Well, if we read DeMateos and the Reyno decision, I think the probabilities are that they would.

But if we look at DeMateos, we see a case which had no American connection whatsoever that was of significance.

But here we have a case in which it is not yet clear whether it’s pilot error or negligence of the pilot, or whether it’s a product liability case.

I take it you’d concede that.

Daniel C. Cathcart:

I concede that defendants have a contention and to that extent that they’ve urged it, it is not clear.

In the Russian cart case, there is no such complication.

Daniel C. Cathcart:

Perhaps there is not such a complication, Mr. Chief Justice.

One of the things that I think is important is that the question of… from the cases that I’ve examined and been able to find is the question of foreign law has never been the determining factor.

It certainly wasn’t in DeMateos.

DeMateos they found had no connection to the United States other than by happenstance.

It happened it just barely crossed the line into our territorial waters.

But if we go through the various decisions, ones in the Dover Straits, most of them are from Admiralty, we don’t have a clearcut case where American law has been the determining factor.

But let me… under the common law foreign non-convenience rule, the change of law didn’t prevent a dismissal, did it?

Daniel C. Cathcart:

I don’t think it did and I don’t know that it should.

I think it’s a factor, it’s a Gulf Oil v. Gilbert factor that the Court should consider.

Well, the court of appeals here thought it was a rather substantial factor.

Daniel C. Cathcart:

They did, indeed.

And so do you.

Daniel C. Cathcart:

I do believe it’s a significant factor from a–

But you say you haven’t seen any old cases like that.

I thought that the… did you find any old common law cases on foreign non-convenience that makes the change of law a substantial factor?

Daniel C. Cathcart:

–I don’t know of a case that makes it a determining factor.


And you do have cases where there would be a change of law if it was tried in another forum and the case was nevertheless dismissed.

Daniel C. Cathcart:

I do not know of any recent cases, and none–

I didn’t ask that.

Daniel C. Cathcart:

–All right.

There are hardly any, I suppose, under the federal rules.

It would just be international cases.

Daniel C. Cathcart:

Perhaps that is correct, and I know of none and I can cite none to the Court.

Let me come back to an earlier point that was discussed somewhat.

What’s to prevent the Scottish court if the case goes there from applying American law?

Daniel C. Cathcart:

The only information that we have on Scottish law is in the affidavits of counsel that are included in the Joint Appendix.

Daniel C. Cathcart:

And they strongly suggest that the Scottish courts would apply the law of Scotland.

Well, they suggest that.

But on the other hand, isn’t the possibility of the Scottish court applying American law precisely what Justice Brandeis said in Canada Malting?

Daniel C. Cathcart:


And the… but we cannot, from this record, determine–

You don’t want to take that risk.

Daniel C. Cathcart:

–I don’t want to take that risk at this stage of the proceedings when it was not raised that strongly in the lower court.

We have another factor in this case, because as I understand the limited issue, we’re talking about whether it can be denied merely because foreign law will apply.

And I submit, and it is the position of the respondents, that it is merely an element that must be considered and should be considered.

But we go to another factor which I think is a very important factor in this case, and that is the defendant in this case has moved this case already, and moved this case upon the representation to the courts involved by way of affidavits that Pennsylvania is overwhelmingly fair to all parties.

In addition, by way of affidavit, Piper has said in the affidavit of November 22, 1977, judicial temporal and geographical interests are best served by a transfer to Pennsylvania, though propriety of transferring the within action to Pennsylvania for the convenience of witnesses overwhelms other factors.

Now, that defendant should be estopped from now coming into court and saying now that we have moved you to our own backyard,–

But you can’t… they were comparing California with Pennsylvania, weren’t they?

Daniel C. Cathcart:

–They were comparing the–

There was no issue at that time as to whether the case should be tried in Scotland.

Daniel C. Cathcart:

–That is correct, they did not raise it at this time.

But they pointed out, using Gulf Oil v. Gilbert criteria, why it should be transferred to Pennsylvania and transferred to the place of manufacture.

Is there anything that would prevent you from refiling your case in the Pennsylvania state court?

Daniel C. Cathcart:

I perhaps could refile it but I suspect I’d be removed on diversity.

You would have to know what Pennsylvania law is on dead people filing lawsuits.

Daniel C. Cathcart:

I know I’m reasonably familiar with the wrongful death statute of Pennsylvania.

You are?

Daniel C. Cathcart:

Reasonably certain.

I was trying to save you from answering the question.

0 [Generallaughter.]

Go right ahead and answer.

Daniel C. Cathcart:

I, under the pressure of the moment, did not appreciate that or seem able to take advantage of that.

Well, what’s your answer?

Could you file?

Daniel C. Cathcart:

The answer to the question is basically, I’m not clear what the question is.

The question was whether they could file in Pennsylvania.

I think you started to say if you did, they’d transfer it to the federal court which would then dismiss it.

Daniel C. Cathcart:

The federal court, unless guided by the Third Circuit opinion, which hopefully will remain the law of this case, would have to leave the case, I assume, intact here on the basis that certainly, it’s an important element here under Gulf Oil, that the very wrong of which the plaintiffs complain, the defective design of the airplane, took place in Pennsylvania right at the place where this trial is going to be held.

And presumably, the manufacturer and all of his employees and people who were instrumental are located there, as is a substantial amount of proof concerning the manufacturing process, the role of the Federal Aviation Administration in that process, and so on.

Are you so sure that the state action in Pennsylvania would automatically be removable?

One of your defendants has principal place of business in Pennsylvania, I was told.

Daniel C. Cathcart:

Yes, Piper does have a principal place of business in… we have a principal place of business in Pennsylvania, and also in the state of Florida.

And although I believe them to be nominally a Delaware corporation,–

Well, is there diversity?

Oh, you’re a California plaintiff, aren’t you?

Daniel C. Cathcart:

–Yes, sir.

For Scottish people.

There may still be no diversity in view of the principal place of business.

One last question.

Do I understand an action is pending in the courts of Scotland?

Daniel C. Cathcart:

Yes, there is an action pending not against the manufacturers, but there is an action pending in the courts of Scotland, which was filed after the procedural issues arose as to whether these people would be allowed to go forward or would not be allowed to go forward in the United States of America.

You said not against the manufacturer.

Against whom, then?

Daniel C. Cathcart:

It would be against the operator of the aircraft, the owner and perhaps against the deceased pilot’s estate.

On that I do not know for sure.

What we have here, or what is solicited by the defendants in this case as manufacturers, and urged by major airplane manufacturers in their amicus curiae briefs is an effort to cause this Court to adopt a policy to close the door in products liability cases on accident which involve products defectively made in the United States but which are sold abroad, and which the manufacturer can be expected to be involved in accidents in anyplace of the globe because of the ubiquitous nature of aircraft, and large aircraft in particular.

And the law of the United States has not gone that far.

As a matter of fact, the law of the United States so far has, where there is a U.S. connection and a reason particularly to apply American law, the courts of the United States have been open to the victims of aviation accidents around the world.

And in a design case, it’s particularly important that they be open because design involves not just one defective article, but involves perhaps a fleet of articles; articles operating in this country and elsewhere in which the United States has a significant interest.

We have, then, the manufacturers trying to use a procedural rule to bring about a substantive result, a procedural rule which would under given circumstances deny causes of action and deny in some circumstances the right of recovery against U. S. manufacturers for defectively made products here.

That, in my opinion, is a policy which should not be encouraged and should not be sanctioned by the highest Court of this land.

The dismissal process should not be used as a protective shield to determine the outcome of litigation, but to the contrary, it should be used only when there is no real nexus to the United States of America and no conceivable basis upon which the manufacturer could play a role in… the U. S. base manufacturer could play a role in the manufacturing process.

I think our position is that based on the limited issue to which certiorari has been granted, that no matter how this Court decides that issue, it should not be determinative or result in a reversal of the Third Circuit Court opinion, because of the very detailed and elaborate weighing of all of the Gulf Oil versus Gilbert factors, and as urged in our brief, because the decision clearly, from the depth of that decision and the detail in the decision in examining those factors, the decision turns not on foreign law or whether it does or does not apply, although it was a significant factor by the Court.

It is clear that all of the other Gulf Oil versus Gilbert factors also were found by the Appellate Court to cause this court, the Appellate Court to believe that there was an abuse of discretion by the trial judge and a failure to meet the burden of proof which the forum non-convenience cases impose upon a moving party, and there was no evidence presented which shows that suing a manufacturer in his own back yard, where the alleged wrongful conduct was conducted, is somehow vexing or harassing a–

May I ask, do you interpret our limited grant as indicating that this Court has already read the Court of Appeals opinion to have turned exclusively on the possibility that the law might change if the case were dismissed?

Daniel C. Cathcart:

–I don’t read it on that alone.

I read it–

Well, we limited the grant to this single question, didn’t we?

Daniel C. Cathcart:

–Yes, it was limited to a single question when many others were raised, and that is why, although the Petitioners have sought a review of this Court ab initio, whether the Third Circuit acted properly or did not act properly on all issues, the granting of the writ, which is limited to the issue of must a motion to dismiss on grounds of forum non-convenience be denied whenever the law of the alternate forum is less favorable to recovery than that which would be applied by the District Court, if we answered that question yes or no, because of the word “whenever” or as used by counsel in argument and in their briefs, merely by showing, we are not expanding this to be a broad issue–

Well, part of your argument, I take it, is that even if the law weren’t going to change, that the Court of Appeals nevertheless found no basis for the transfer.

Daniel C. Cathcart:

–That is correct.

Even if foreign law were to be applied, and because we are applying in 1404(A) transfers, foreign law frequently, when we take the conflict of laws principles involved, and it may require the use of foreign law, i.e., the law of a foreign state, in deciding a case, and according to Van Dusen versus Barrack, the law of the transferor state accompanies the transfer of the file, including its conflict of laws, and accordingly a transferee court can apply a foreign law, albeit a foreign state, but there is no distinction of any great significance to whether or not it is foreign state or foreign country.

Yes, but the Third Circuit seems to have said unequivocally that if there is a difference, dismissal would not be justified.

They say that at Page 140.

Daniel C. Cathcart:

It certainly did, and it adopted its own language out of DeMateos, but if we–

And that is apparently the rule that they apply in the Third Circuit, so that if we do not agree with that rule, don’t we have a duty to vacate the judgment and say, take a look at the case without the benefit of that rule?

Daniel C. Cathcart:

–I don’t believe so, because I don’t think the decision in that lower court turned on that one statement.

It turned on a myriad of factors, and that one statement, although important and of significance, was not determinative.

It was not determinative in De Mateos, because in De Mateos the court found that there was no nexus to American law whatsoever, and therefore the Court did not have to answer that question.

It said, this case does not belong in the United States under the factual context.

It is all foreign.

Do you think that statement is a correct statement of the law?

Daniel C. Cathcart:

I think that it is a correct statement to say–

You defend that rationale.

Daniel C. Cathcart:

–I defend that rationale.

You really haven’t.

You have pretty much argued, well, they really didn’t mean what they said.

Daniel C. Cathcart:

I don’t believe that it needs to extend that far to justify the opinion of the Third Circuit.

The opinion can stand even if this Court should disagree with that statement.

I do not find that statement in any opinions other than those by the Third Circuit and by some of the text writers on the subject, who have suggested strongly that the… as in the Fifth Circuit, in the Fisher versus Ajios Nicolaos V, 628 F 2nd, 308, which is cited in our brief, that says where U. S. law is applicable, jurisdiction is retained, and I think that is one side of the coin, but what do we do if U. S. law is not applicable, and that is something that is not before us at this time.

Warren E. Burger:

Your time has expired.

We will take up your rebuttal at 1:00 o’clock.

Warner W. Gardner:

Yes, sir.

Warren E. Burger:

Thank you, gentlemen.