Three Choices When Faced With Dispositive Precedent -- "Head In The Sand" Is Not One
GONZALEZ-SERVIN v. FORD MOTOR COMPANY (November 23, 2011)
Two particular situations have generated much litigation and disagreement over the proper forum in which to resolve a dispute. The Gonzalez-Servin litigation is one of many cases brought as a result of alleged defects in tires that were installed on Ford vehicles in Latin America. The accident at issue occurred in Mexico and resulted in the death of a Mexican citizen. Judge Barker (S.D. Ind.) granted a forum non conveniens motion, concluding that Mexico is a more appropriate forum. The Kerman litigation is one of many cases filed against blood products manufacturers that alleged infections as a result of contamination. The case was brought by Israeli citizens. Judge Grady (N.D. Ill.) granted a forum non conveniens motion to transfer the case to Israel. The defendants in both cases appeal. The Seventh Circuit consolidated the appeals.
In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Posner and Tinder affirmed both orders. The Court was very critical of the appellate advocacy in both cases. The transfer of similar cases has come before the Court in the past. In 2009, the Court affirmed the transfer of a defective tire case to Argentina. In 2009 and 2010, the Court affirmed a transfer of contaminated blood products cases. The Court was very critical of the appellants' "ostrich-like tactic" of pretending that those dispositive precedents did not exist. The Gonzalez-Servin brief did not even mention the cases, even though appellee's response brief cited them repeatedly. The Kerman opening brief was filed before the relevant cases were decided but its reply brief barely touched on the precedent, even though, again, appellee's brief relied on them heavily. The Court stated that an appellant has three choices when faced with apparently dispositive precedent: a) urge the Court to overrule it, b) distinguish it, or c) preserve the argument for a petition for certiorari. Ignoring it is not an option.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select