Foreign rollover cases can stay in U.S. court, judge rule.

Products liability suits filed against Ford Motor Co. and Bridgestone/Firestone, Inc., will stay in U.S. federal court.

Judge Sarah Evans Barker refused to dismiss more than 90 cases against the auto and tire manufacturers resulting from rollover accidents that occurred in Venezuela and Columbia. More than 700 cases against the companies have been consolidated in multidistrict litigation (MDL) under Barker in the U.S. District Court for the Southern District of Indiana. (In re Bridgestone/Firestone, Inc., 190 F. Supp. 2d 1125 (S.D. Ind. Mar. 25, 2002).)

The defendants had filed motions to dismiss the cases on the grounds of forum non conveniens--arguing that the U.S. federal court, though it had subject-matter jurisdiction, was not a convenient forum for the cases to be heard. The defense argued that they should be tried in the countries where the crashes occurred.

"This is a very significant forum non conveniens ruling," said Victor Diaz of Miami, co-lead counsel for the personal injury/wrongful death plaintiffs in the MDL. "It has tremendous precedential value for other products liability cases regarding U.S.-designed products that are distributed worldwide and injure consumers abroad. With increased globalization, U.S. corporations are anxious to exploit foreign markets but want to close the doors of U.S. courthouses to foreign plaintiffs." Diaz's firm represents most of the plaintiffs affected by this ruling.

In a forum non conveniens inquiry, the court must first decide whether an "adequate alternative forum" is available, then weigh defined public- and private-interest factors to determine the most convenient forum. Barker ruled that the Venezuelan court system was not an adequate alternative forum, and that the current volatile political situation in Columbia raised significant security issues. In addition, she wrote, the plaintiffs made a "convincing case that much of the evidence regarding liability is in the United States."

The cases stem from rollovers involving Ford Explorer vehicles with Firestone tires. The Firestone ATX, ATX II, and Wilderness AT tires were recalled in the United States in August 2000 after reports of tread separation that caused the crashes. The tires were standard equipment on Ford Explorers until 2001, and Firestone alleges there has been a higher incidence of problems with Explorers than with other SINs riding on the same tires.

The plaintiffs claim that the Explorer's defective design exacerbates the tires' defects. Ford had recommended that for a smoother ride, Explorer drivers keep the tires inflated to an air pressure lower than the tires' safety rating. Lower pressure increases the risk of tread separation.

The problems were first noted in Venezuela in 1998 and in Columbia, Saudi Arabia, Argentina, and other foreign countries over the next two years. Plaintiffs allege that Ford and Firestone knew of the hazard but avoided taking action so as not to alert U.S. regulators. Plaintiffs also maintain that the U.S. corporate headquarters controlled their foreign subsidiaries' reactions to the problems overseas.

The court's ruling applies directly to only the Venezuela and Columbia cases, though the court noted, "of course, our ruling carries implications for the remainder of the forum non conveniens motions."

The foreign cases and the judge's ruling will also affect the hundreds of lawsuits against Ford and Firestone related to rollovers in the United States. Key questions for those cases are, how much did the companies know, and when did they know it?

"The full story of how indifferent both Ford and Firestone were to the safety of U.S. consumers begins abroad," Diaz said.

In its ruling, the court noted, "American interest in Ford and Firestone's investigations of these [foreign] accidents has been high, on the theory that had the public and relevant government agencies known of the problems sooner, fewer deaths and serious injuries would have occurred on U.S. highways."

Mike Eidson of Coral Gables, Florida, ATLA parliamentarian and MDL co-chair, added, "The forum non conveniens principles we addressed apply in every case involving a product made or designed in the United States causing death or injury in a foreign country. With the global economy, more ATLA members will face forum non conveniens motions like these, and [the documents from this case] will teach them how to handle these issues and help them decide whether to accept cases like these."

The defendants have filed a motion for certification of an appeal and a brief asking the court not to apply this ruling to other cases, Eidson said. The plaintiffs have opposed both motions.