-: SJC-13354,
Amy Doucette and others,
VFCA US, LLC and others.
-: Okay, I'm just trying to wait for things to settle down
a little bit before you can start.
No, no, you can stay up there.
Whenever you're ready, Attorney Gupta.
-: Should I wait for Justice?
Man: He's recused. Judge: No, he's recused.
-: Oh, oh, I'm sorry.
I didn't know that. Justice: Oh,
but that's kind of you.
(man chuckling) -: Oh.
Thank you, Chief Justice and Associate Justices.
As it may please the court,
Deepak Gupta for the plaintiff appellant, Paul Doucette.
When a corporation sells a product to the public
in the commonwealth,
and that very product causes personal injury,
the Commonwealth courts have the power to entertain a suit
against that corporation.
That is true regardless of whether the injury is felt
out of state,
and nothing in Ford overturns that settled rule.
Justice: Where is that rule settled?
-: That rule is settled,
I think because of this court's long-standing rule,
that but-for causation satisfies
the relationship relatedness requirement
for specific a jurisdiction.
So in Tatro,
this court held that where the transaction in Massachusetts
is the first step in a train of events
that results in injury,
that there is specific jurisdiction,
and the court further recognized that that is true,
that that but-for connection does not disappear
when the plaintiff is injured in another state.
And so I think what the Superior Court should have done
is simply applied this court's longstanding precedent.
Contrary to what the Superior Court thought,
Ford overturned none of this.
Ford's central holding
was that a strictly causal relationship is not necessary.
But Ford did not reverse the prevailing understanding,
or this court's precedent,
holding that but-for causation is sufficient.
So both as a statutory and a constitutional matter,
specific jurisdiction over Chrysler and its successor
is proper in Massachusetts
because of the sale of the car in Massachusetts,
which was the but-for cause of the plaintiff's injuries.
That Massachusetts sale, as this court has put it,
was the first step in a train of events
that resulted in injury. -: Just so you,
so, from what I understand,
Chrysler distributed the car to Rhode Island, right?
Not to Massachusetts, right?
-: No, the first sale to the public was in Massachusetts.
It is true that the car was shipped into Massachusetts
from Rhode Island,
and that's not uncommon when cars are sold.
They're often,
I remember buying a car,
and you know, they don't have the blue car
at the dealership
and so they send it from another dealership.
But what matters for purposes of personal jurisdiction
is when the product enters the stream of commerce,
when the car is sold to the public,
and car companies don't sell,
with the exception of maybe Tesla,
they don't sell cars directly to consumers.
They usually use their authorized dealerships.
Here an authorized Massachusetts Chrysler dealer
sold the car in Massachusetts to the public,
and so it's that action by Chrysler
through its dealership network
that means that Chrysler purposely availed itself
of the privilege of doing business in Massachusetts,
and with that privilege comes the reciprocal obligation
to face suit in Massachusetts
when that product injures someone.
And this, the Supreme Court recognized that
as long ago as- -: Is there any state
that Chrysler would not be subject to personal jurisdiction
under your theory?
They've made a car and now it's ended up in,
you know, I don't know,
they shipped it to California,
but there somebody in Massachusetts
wants that purple car that's only in California.
-: Oh no,
I wanna be really clear that the theory we're urging here
is quite modest.
The theory here is just
under this court's existing precedent,
where there is a but-for causal relationship;
in other words,
where the car is actually sold in Massachusetts,
Massachusetts is a proper forum.
It does not mean that the Doucettes
would be able to sue Chrysler anywhere else in the country.
-: So this, you're arguing sort of the opposite.
You're actually arguing Ford's position in that Ford case.
The place of first sale,
is the place or a place of first.
-: It's a place,
and I think that's the big difference here.
And I think this is how the Superior Court got confused.
I'm not arguing Ford's position in Ford.
I represented the plaintiff's in Ford,
so I'm not arguing anything inconsistent.
In Ford,
what Ford was arguing
is that a strictly causal relationship is necessary,
and that no other kind of relationship
can satisfy specific jurisdiction.
But Ford and everyone in Ford, in that case,
understood that a strictly causal relationship
would be sufficient.
And nothing in the Supreme Court's decision
undercuts that settled understanding,
or this court's precedent recognizing as much.
And so it's been settled since
at least World-Wide Volkswagen
that when a car company,
through its distribution network,
sells a car in the forum
that there's personal jurisdiction.
As the Supreme Court said in World-Wide Volkswagen,
the forums- -: But in that case,
wasn't the accident also in state?
-: So the facts,
I'm not relying really on the fact pattern in Volkswagen.
That was a much harder fact pattern.
What happened is you had a couple
that bought a car in New York
through a Volkswagen dealer in New York,
and then they drove to Oklahoma,
and the accident was in Oklahoma.
But nobody doubted
that they would've been able to sue in New York.
And that's what this lawsuit is, right?
This lawsuit is,
if you take the facts of World-Wide Volkswagen,
but the couple had sued the dealer
from which they purchased the car in New York,
and Volkswagen and Audi in New York.
So this is this much simpler case,
and I think that's why it hasn't reached the court.
The Ford case was the harder case
in which the question was whether you go beyond
a causal relationship,
and the court said,
yes, you can go beyond a causal relationship.
The Superior Court made the mistake of looking at Ford
and thinking that, well,
these facts are different from Ford,
and so somehow under Ford there isn't jurisdiction.
That was just a pretty elementary error.
-: Well, but the sale here is really attenuated.
The sale in Massachusetts is really attenuated
from the accident, right?
I mean, the sale takes place what year?
Gupta: It's 2003.
-: So they send the the car to Rhode Island.
The Rhode Island,
the Massachusetts dealer requests a red car.
It briefly arrives in in Massachusetts.
Then how many years later are we talking about?
It's?
Gupta: About 10 years later.
-: Okay, so 10 years later
an accident happens in New Hampshire.
They never bought the car,
they bought the car in New Hampshire, I take it, right?
-: Yes. -: So it's,
I understand the but-for.
I'm a great but-for person,
but this is really super attenuated.
And does the US Supreme Court really want to,
I mean,
we're dealing with that inner federalism language
in we've got there's,
you know, there's cause for concern here
that we're gonna get a,
you know, the US Supreme Court lecturing us
that we're not listening to them.
-: No, I don't think so at all.
And let me try to alleviate that concern.
I appreciate the question, Justice Kafker,
'cause I do think that's kind of
what's behind the other side's argument,
is this idea that,
well, if you look at it
from the perspective of the plaintiffs,
these plaintiffs who got injured,
you know, what did they do in Massachusetts?
And that's exactly the wrong perspective.
What the Supreme Court has said over, and over,
and over again
is that the focus is on the defendant's contacts
with the forum.
Why? -: Back to
Justice Gwendoline's point.
I mean, Chrysler's a big company.
They're dealing with every state in the union.
They're sending a lot of cars into every state.
I mean, literally thousands and thousands per year.
-: Right.
But, well, it might help you to think
about a different kind of company.
So imagine a company that isn't operating in all 50 states.
Imagine a company that only sells products in Massachusetts,
and this is why it matters.
What matters is if you sell the product in Massachusetts,
you're availing yourself of the privileges
of doing business in Massachusetts,
and there are obligations that come with that.
And so the rule that we're urging
would apply in that scenario as well.
And in that scenario,
the Doucettes or someone like them
wouldn't be able to sue in their home jurisdiction
because there wouldn't be jurisdiction on a Ford type theory
available to them.
They also wouldn't be able to sue the local retailer
or dealer as they're doing here.
And so I understand if you look at a company like Ford,
you might think, well, why does it matter?
You know, the Doucettes were,
I mean, they did actually sue in New Hampshire, but.
-: The US Supreme Court
seems to be providing certain kinds of limitations here,
even for big companies.
I mean, I haven't gone through
all these different US Supreme Court cases,
but there's sort of some surprises
where you don't have jurisdiction, right?
-: Well, I mean,
I have gone through all the cases,
and I can tell you there isn't a case
in the US Supreme Court,
or that I'm aware of from any state or federal circuit
for that matter,
that forecloses jurisdiction
against a corporation that purposefully avails itself
in the forum and sells a product in the forum
and is sued for injury caused by that product.
And you may want to ask my friend when he gets up
whether he's aware of such a case.
The Ford case was a case
in which everyone assumed that jurisdiction
would be available at the site of sale.
Ford's argument was we grant you,
under settled jurisdictional precedent,
you can sue us where we've done something,
where we designed the car, where we made it,
where we have our headquarters, where we sold it.
But in Ford,
the plaintiffs were suing in the place where they lived
and where they were injured.
But where Ford argued it hadn't done anything.
-: But Ford is not,
because they were saying arising from or related to, right?
Gupta: Right. -: Here it's arising from
the first sale. Gupta: Exactly.
-: So I understand the point.
So my question to you is,
what is that case where their first sale is in the forum,
and nothing else is, right?
Like it is here, right?
The Doucettes live in New Hampshire.
The accident happened in New Hampshire.
They bought the car in New Hampshire.
The only think tying to the Commonwealth is that first sale.
What is that case?
-: So first of all, I would say,
and I started to say this earlier,
but there was a question I just want to emphasize
what the Supreme Court has said over and over again
is what matters is the defendant's relationship
to the forum, the defendant's contact.
So Walden versus Fiore is I think a case you should look at.
That's a case where the plaintiffs said-
Justice: What's the case again?
-: Walden versus Fiore,
and that was a case
where the plaintiffs made the kind of argument,
Justice Wendlandt, that I think you're talking about.
They said, look,
everything about this case;
we live in Nevada.
The injury is felt in Nevada.
We should be able to sue in Nevada.
And what the Supreme Court said is, no,
the only thing that matters
for personal jurisdiction jurisprudence
is the defendant's contacts with the forum,
and the defendant's contacts were with Georgia.
And what that case stands for,
and Ford interprets that case.
What Ford says about Walden
is that the place of the plaintiff's injury and residence
cannot create a defendant's contact with the forum.
So I understand if you're just in a kind of common sense way
in the kind of way you might think
about forum non convenience, or choice of law,
you might say,
well, the locus of the controversy is outside the forum.
But what's relevant here
is what did Ford do in the forum
to avail itself of the privilege
of doing business in the forum
such that it would be fair and consistent with due process
for them to expect that they would be hailed in the court?
-: Focus on Chrysler's actions in the forum.
They had the first sale in the forum.
Gupta: Right. -: What else?
-: Well they have a network of dealers.
They have 43 dealers in the forum.
They advertise in the forum.
-: Is that in the record?
-: The record is sparse, I admit.
But the record does,
it is alleged that they have authorized dealers
in Massachusetts,
and they sold the car through an authorized dealer,
and that is more than enough for purposeful availment.
And I think common sense tells you
that you have the kind of purposeful availment
that you had in the Ford case.
It's a national car company.
It's not a hard question
when it comes to purposeful availment.
So then the only question is,
is are those contacts with Massachusetts
setting up a dealer distribution network,
selling cars here,
are those enough that when that product injures someone
that the corporation could have expected
that it would be sued in Massachusetts?
And I think it's notable that Chrysler,
you know, at least in their briefing,
they can correct me if I'm wrong when they get up,
they're not really arguing,
I think, that it would be unfair
for them to be hailed into court in this jurisdiction
where they sold products, right?
So if due process
and the personal jurisdiction jurisprudence
are about fairness and federalism,
there either has to be some kind of fairness problem,
which hasn't been identified.
-: But I'm still nervous about the US Supreme Court.
And Malden, I read Malden the last time,
but I haven't read it recently.
It's not one of those sale cases, right?
Gupta: That's right.
-: Can you just, the question that Justice Wendlandt asked,
which I really would like an answer to.
Gupta: Sure. -: Is are there cases
where the first sale occurs,
but then there's just nothing after that?
Could you point us a couple of cases like that,
because, you know. Gupta: Yeah.
-: This, we are in this,
we're going right into what the US Supreme Court
was kind of vague about,
and it would be nice to have some comfort
we're not gonna get, you know,
the facial disgracial
when the issue in your way if do so.
-: It's hard to understand
how the US Supreme Court could have any problem
with asserting jurisdiction here
when there's no argument that the defendant's contacts,
which are all that's relevant.
-: Again, can you give me a couple of,
any US Supreme Court cases,
or any federal circuit cases like this
where there's a sale but then nothing connected to the forum
for 10 years, because I-
-: I don't know that I can give you exactly 10 years,
but what I tried to do in our 16L letter
is to provide you with every case we were able to find
post Ford
in which this issue has come up
where the argument was the sale occurred
or the transaction occurred in the forum,
but there was an injury felt elsewhere
and the plaintiffs relied on but-for causation.
And what those authorities show
is that every jurisdiction we've been able to find
recognizes that but-for causation remains the rule
just as it was before Ford.
Nothing in Ford undercuts that.
So I'm sorry I can't give you a case
that has this exact fact pattern,
but I think it's also notable that there isn't a case
that forecloses jurisdiction with this exact fact pattern.
And so, you know, if. -: It would've been nice
in Ford, the US Supreme Court said,
oh, of course you have jurisdiction this way and this way.
Instead they spend a huge amount of time
saying that jurisdiction is appropriate
where the injury occurs
and kind of minimizing by comparison the opposite.
That's what gives me pause here
that we're we're running into a problem.
-: I can say,
I mean, as the lawyer who argued for the plaintiffs,
I think we all just assumed that the lower courts
had causation based jurisdiction as a given.
And so the question there was, is there also something else?
And I think you know what,
and this is why we sent in the 16L letter
to give you some comfort
that every court that we can find
that has looked at this question
has recognized that Ford doesn't undercut causation
as a basis for jurisdiction.
Kafker: Thank you.
-: So tell me why the claims arise from that first sale.
Is that because of Tatro and the chain of events?
-: Yeah, and just in really common sense terms,
what's being sued about is Chrysler's.
Wendlandt: Design defect. -: Design defect.
They made this thing, they sold this thing,
they introduced it into the public,
and yeah, it may end up elsewhere,
but the place where they sold it was Massachusetts.
And, you know, a defendant has an ability,
this was a big feature of the Ford case.
-: And so the design defect claims
arise from the defendant's first sale
and introduction into the marketplace.
-: Introduction into the marketplace
of a product that's alleged to be defective.
And the defendants have the ability
to structure their conduct
to face certain jurisdictional consequences
so they can decide where they sell things.
One example that was discussed in the Ford case
at oral argument was,
you know, imagine a company
that wants to sell convertibles that are for warm weather,
so they only sell them in certain states,
and they don't sell them in other states
that have cold weather.
Well, in that case,
the logical place to sue them
would be the place where they sold it,
and where they could expect to face suit.
So this should be the easy case.
This is the heartland case for personal jurisdiction.
And Ford was the more, the harder case,
the more expansive case,
but in expanding the scope of jurisdiction,
the Supreme Court should not be understood
to have sort of accidentally limited it.
Thank you.
-: Very much.
Attorney Durney?
-: Good morning, Your Honors.
Peter Durney on behalf of the appellee, FCA US LLC,
may it please the court.
In discussing personal jurisdiction,
we could debate the meaning
of some of these extracted phrases
that have come from various Supreme Court cases
over the past 75 years since International Shoe.
We could also take a look at,
in the Ford case,
the multiple references to inform plaintiffs,
resident plaintiffs, inform injury, and.
-: I mean, isn't your opposing counsel correct
that the focus is really on the defendant's conduct
in forum?
And so- Durney: I would say that-
-: The fact that they designed a car in Michigan,
and then had the first sale in the Commonwealth
is the focus.
Whereas where the Doucettes ended up getting injured
by the car that was designed in Michigan
and for sold in Massachusetts,
is neither here nor there.
-: Well, it's rather complicated when you look at it,
Your Honor,
because what I was hearing from council
was sort of a purposeful availment argument
that the companies come into Massachusetts,
and the company has a network of dealerships
and they bring products in.
But what the Supreme Court was looking at in the Ford case,
in of course the arguments in the Ford case
are a matter of public record,
and I have listened to Mr. Gupta's very eloquent argument.
They were, in fact, per your question earlier,
arguing exactly the opposite of what they're arguing here.
And of course Ford changed the landscape in multiple ways,
but there are questions in examples
embedded in the Ford decision that are very important,
because if you look at,
for example, the discussion about the arises from
or relates to,
the court is very clear to say
this does not mean anything goes
in the concurring opinions that was picked up on.
And that,
anyway, the court goes on to say
in the sphere of specific jurisdiction
the phrase relate to,
which is the second part,
incorporates real limits.
It must adequately protect defendants foreign to the forum.
Put differently in the Ford case, they're very specific,
and I think this is to your question.
-: You mumbled something after incorporates real limits.
I didn't hear what it is.
-: Incorporates real limits.
I beg your pardon, Your Honor.
As it must adequately protect defendants foreign to a forum.
And so those are the,
that's really the rules derive from,
according to the Ford case,
and reflect two sets of values.
And that's a direct quote. -: I get that.
Durney: Okay. -: But then
the way this was phrased at the very end,
maybe it was by Justice Wendlandt,
a defective product has been sold to us in Massachusetts,
is that enough to say this is not a,
it's not a defendant foreign to the forum,
because in its most basic sense
you sent a defective product here for sale.
-: I think that,
but. -: It's a question,
not an answer.
You know, is that? -: I understand, Your Honor.
Kafker: Yeah. -: No, I think
that the defendant is definitely foreign to the forum,
because under the Bahamian case,
they are at home in the place where they're incorporated
or the place- Wendlandt: Well,
we're not talking about general jurisdictions.
-: I understand.
Wendlandt: Specific jurisdictions.
Durney: Right.
Wendlandt: So let's just stick with that.
-: But I think that just makes them foreign,
is all I'm saying.
They are foreign to the jurisdiction,
and the plaintiff is not alleging general jurisdiction here.
-: Yeah, but they purposefully availed themselves
of Massachusetts by making their first sale
in Massachusetts. -: There's no argument,
I think, in this case
about the purposeful availment component,
or in the reasonableness section
of the three-prong test.
Wendlandt: Right.
-: The relatedness test is what is really at issue.
-: But that's an either or, right?
It's either arising from or related,
and the Ford case was about that or related.
So let's set that aside,
and deal with a rising from.
And under Tatro, isn't your co-opposing counsel correct
that we have interpreted a rising from
to the extent of the constitution,
meaning but-for?
Not proximate cause, but-for.
-: I don't disagree with that
insofar as it relates to 233 A3A,
the long arm statute.
I think we're talking about the arising from language
in the long arm statute,
and I think that's where some confusion may arise.
Wendlandt: Ah ha. -: In addition to that,
the Tatro plaintiff,
the Tatro plaintiff was also a Massachusetts resident
as you recall.
Now she fell in a bathtub in California,
and she had made the arrangements for the California hotel
through the internet,
or through these various discussions with people.
But that,
and then there was a long discussion
about the fact that they, the company,
had contacts with Massachusetts
where they directly billed clients and the like.
But to answer a question that came up earlier,
I am unaware of any case
that would say that a sale of a car in Massachusetts,
or any other state,
first sale to a non plaintiff,
or to someone who does not-
Wendlandt: Reside in the forum.
-: In the state, not injured in the state, et cetera,
gives the local court in that forum
the basis for jurisdiction.
Now there have been cases that have talked about,
one of 'em was Choy that was cited.
Was a California decision that came out after Ford.
We actually put it into our brief in the addendum.
The Choy case involved a gentleman who was sold a car,
new presumably,
in California by a Penske dealer in Cerrito, California.
That vehicle was sold to Mr. Choy,
who was ultimately injured,
but he was out of state when he was injured,
so they brought the claim in California.
Now the court in that case
analyzed some of the discussion in the Ford case,
and ultimately,
in part because he was a resident,
he bought the car in California,
but also because they had privity
in connection with warranty cases in California,
that California was an appropriate forum.
Now that's the only case that I can think of
that even comes close to this scenario,
and this scenario is very different
because as we all know,
Mr. Doucette was not a resident of Massachusetts.
He was not injured in Massachusetts.
He didn't buy the car in Massachusetts.
And a setting aside the nuances between the two companies,
because it was sold by an old car company,
which is pre-bankruptcy,
and then you have FCA US LLC down the road
that's been sued.
But I think it's interesting to,
we need look no further than these two.
There's a footnote,
footnote three in the Ford decision.
I'm sure you've seen it,
but I'll address it if I may,
if you can indulge me just for a second to read it.
It says,
"In thus reiterating this court's longstanding approach,
we reject Justice Gorsuch's concurrence,"
concurrence is in brackets,
"apparent if oblique view that a state court
should have jurisdiction over a nationwide corporation
like Ford on any claim
no matter how unrelated to the state
or Ford's activities there.
They go on.
They say, "On that view, for example,
a California court could hear a claim against Ford,
brought by an Ohio plaintiff,
based on an accident occurring in Ohio,
involving a car purchased in Ohio,
removing the need for any connection between the case
in the forum state
would transfigure our specific jurisdiction standard
as applied to corporations.
Case linked jurisdiction
would then become not case linked at all."
-: I, you read that quickly.
In that hypothetical.
-: Yes, sir? -: Is the first sale
in the forum or not?
-: It was-
-: Are all the things outside?
Here we have-
Durney: It was purchased in Ohio.
-: So, it's different.
-: It's different. -: Yeah.
I don't know that they said it was the first sale,
or just a subsequent sale.
-: Yes, I get that Justice Kagan is saying,
okay, you can't just 'cause they're Ford
doesn't mean you have jurisdiction anywhere,
but you have this additional fact that,
which is, again, the first sale of this
allegedly defective car happens here.
So, you know, it's like
the act that we're most worried about
takes place in Massachusetts.
Now maybe there's nothing wrong with the car,
but if it is a defective car,
it's sold in Massachusetts to a Massachusetts resident,
so we have concerns about that, right?
-: Yeah, and and I understand that, Your Honor, I think,
but if I hearken back to the question
that was asked earlier,
can you sue a company like Chrysler in any state?
Can you just?
-: Can these plaintiffs go anywhere?
-: Can they go anywhere in the United States?
No. -: I mean,
if they can't go to New Hampshire,
and they can't go to Massachusetts,
Michigan, is that where they go?
-: Are you asking, Justice Cypher,
whether they have preserved their right
to go into an alternative forum,
or whether originally they had an alternative forum?
-: Whether there is an alternative for them.
Durney: Today?
-: Originally.
No, originally.
Durney: Oh, originally I think that,
well, of course the oddity about this case
and the complexity of the case
relates to in part the fact
that Ford came out between the decision in New Hampshire
and the decisions down here.
-: I mean, didn't you argue in New Hampshire,
this is not the right forum,
send us to Massachusetts?
-: You know, actually that's exactly,
we argued that it was not the correct forum.
We did not argue, as some people had posited
in the amicus briefs,
that there was an alternative forum
and it was Massachusetts.
We never said that.
As a matter of fact,
the court can look to the transcript
to the hearing in New Hampshire.
It begins at page 450, I think of the transcript.
I mean, excuse me, of the record appendix.
And Judge Laplante said.
-: Let's simplify this a second.
If we rule for you-
-: Yes? -: Does this
terribly injured person have no forum
at this point in time?
-: That's, Your Honor,
I knew that question was going to come up
because as a matter of human-
-: Decency.
(man laughing) -: Decency,
and of course sympathy, that is a consideration.
There are two things that I would say in response,
if I can just.
-: I would just, is there a yes no to begin with?
-: I don't have a yes answer for that.
I don't have a no answer for that
because of two, a couple of different things.
-: So then,
well, that raised the issue
of whether we're going to hold you to your original reject.
I mean, New Hampshire,
clearly now after Ford, was an appropriate jurisdiction.
-: And they never appealed the case up there
so they're left with this particular situation.
But the problem,
the judge asked if we would agree
to a transfer to Massachusetts, Your Honor.
And if you look at the end of the transcript,
Chief Judge Laplante said,
"Okay, get together
and see if you can come to an agreement
about an alternative."
There were two different clear paths that were available,
Michigan and Delaware.
And we were being asked about Massachusetts,
and we reported back
that we did not agree with Massachusetts,
and yet the plaintiff; thereafter,
after the judge went ahead and ruled.
-: You can see why someone doesn't wanna sue in Michigan?
(man chuckling)
Durney: That could be true.
-: Home of the automobile industry,
home of Chrysler,
a million miles from their home.
I can see why they'd want to be somewhere else, right?
-: And I don't disagree with that, Your Honor,
but what I would say, and to answer your question,
I'm sorry I didn't want to not answer it.
-: Having clerked on the Michigan Supreme Court,
I have nothing but respect for Michigan,
but I can see why they don't want to go there.
-: Well, to answer your question though,
was whether there's an alternative forum,
and Michigan, as I understand it,
does not have a savings statute.
Delaware had a savings statute,
had, but I think it's a year.
But setting that aside for the moment,
I think we really need to look at the considerations
that drive the jurisdictional analysis,
which are fairness to the foreign defendant,
and then the considerations of federalism,
which is emphasized in the Ford case.
Now, I mean, I'm a human being like anybody else.
I understand that people can be very seriously injured.
As you pointed out,
there may be nothing whatsoever wrong with the car,
so it's not a given that there was a defect
that caused the injury.
But with all of those factors taken together,
you can see why there would be some reaction
to this being somewhat of an unfair outcome.
But it's not.
It is a consequence of the law as the law exists,
and Judge Howe, Justice Howe,
went through the analysis in a very careful way.
I don't think that it is in any way outta sync
with what this court would expect from one of its jurors.
And I don't think that it is anything out of the ordinary
or out of sync with the language that we've heard
coming out of the Supreme Court of the United States.
In fact,
I think it comports exactly
with the analysis that they would expect
jurors to go through.
They're not saying it's open season,
that you can go anywhere you want.
And to get to the point
about whether you can sue anywhere,
which Justice Cypher was asking also, I think it.
I hearken back to the,
there's a quote from the case,
the World-Wide Volkswagen case,
where they talk about chattels,
and the fact that you,
you know, a claim could follow the chattel
just about anywhere.
And that's just,
that's not the way jurisdictions should work.
There was a close call in the case of World-Wide Volkswagen
that they had to make
because it involved a dealership that was in New York
that was challenging jurisdiction out in Oklahoma.
But in Oklahoma, of course there was the question,
okay, well, the manufacturers are upbringing
a jurisdictional challenge.
It's only the dealer.
And so the World-Wide Volkswagen case
actually supports very strongly our position
because the dealer
really didn't have any connection to Oklahoma.
The Bristol Myers Squibb case
is almost directly on point.
In the Bristol Myers Squibb case,
Plavix was the drug involved in those cases.
It was a mass tort case
and there were multiple plaintiffs
from various jurisdictions.
And those plaintiffs never ingested Plavix in California.
They weren't prescribed the medicine in California.
They didn't live in California.
Wendlandt: Yeah,
but the closer analogy would be,
yeah, they lived in Cal,
or let's say the California pharmacy
sent it across state lines
to wherever it was that they lived.
And that's the case that we really have.
Like the first sale,
there was a nexus to California in some way
in that Bristol Myers Squibb case.
That really wasn't answered in that case.
-: You know. -: Everything had happened
out of state. -: I think that.
-: Including the defendant's activities, right?
-: You know, Justice Wendlandt,
you put your finger on a problem.
And I think that it was also identified
in the concurring opinions in the Ford case;
that saying, this doesn't mean anything goes,
or saying there are gonna be limits
doesn't necessarily provide a lot of guidance
to the lower courts.
That's been the problem since 1945 perhaps.
And, you know, there was a move
that was expressed in the concurring opinions
to perhaps bring us all the way back
to International Shoe,
or even before that to Penoire, but.
-: I was hoping you were gonna say Penoire.
(group laughing)
-: And I found, by the way,
obviously the courts are not going to go
backwards on this,
but you would expect some clarity,
and maybe there's not enough clarity there,
but the dicta,
and it's dicta,
but it's from the highest court in the nation,
and it's in the past two cases,
their most recent cases on jurisdiction.
The dicta supports this position.
As a matter of fact,
in the Ford case, there is the quote.
It's on page 15 of the slip opinion.
-: What's the other dicta?
Because we've read, we've got Ford in our head.
The other case that?
-: Oh, the other cases I was talking about
is Bristol Myers Squibb.
-: Yeah, and what is the dicta in Bristol Meyers Squib,
because I don't know.
That may be hard to follow.
-: In Bristol Myers,
and it's discussed in the Ford cases as well, Your Honor,
the,
and I wouldn't say that it's dicta actually, because.
Kafker: What's the language you want us to?
-: The language I wanted you to focus on
is that they were not residents of California.
They hadn't been prescribed Plavix in California.
They didn't ingest Plavix in California.
They hadn't sustained an injury in California.
And that's identified the Ford decision.
And there's some discussion about that.
But the focus I was trying to bring to the court just now
about that page 15 comment,
is that they posed another hypothetical in the Ford case.
"Consider,"
and this is a direct quote,
"Consider next to those."
Now the plaintiffs in that case,
we're arguing that in Ford was taking a position
that it should be the point of sale of course in the,
but if it hadn't been an important concept
that had to be considered by the court,
or if it had been indelibly decided earlier,
then the Supreme Court of the United States
would not have taken on that case
and made the decision that they did,
so they had to consider it.
Which is also,
I would respectfully suggest,
justification for why we made an argument
up in New Hampshire that we're not making down here,
'cause Ford intervened.
But what happened
was that those cars were not initially sold
in the state of Montana,
or in the state of Minnesota
where those two respective plaintiffs came from.
One of 'em was a passenger, was not a purchaser,
but that's beside the point.
But the court said, "Consider next to those
the interests of the states of first sale:
Washington and North Dakota,
which Ford's proposed rule
would make the most likely forums.
For each of those states,
the suit involves all out-of-state parties,
and out-of-state accident, and out-of-state injuries.
The suit's only connection with the state
is that a former owner
once, many years earlier, bought the car there.
In other words,
there is a less significant relationship
among the defendant, the forum,
and the litigation,"
quoting Walden, which my brother mentioned earlier,
Walden versus Fiore.
So by channeling these suits,
and this is the key language,
so by channeling these suits to Washington and North Dakota,
Ford's regime would undermine
rather than promote what the company calls
the due process clauses jurisdiction allocating function.
So essentially what Ford was arguing,
in the eyes of the court at least,
was considered by the court to be a proposition
that would severely curtail
the ability to decide a jurisdictional case
without all of those paradigm facts in place.
And the, ultimately,
obviously there is a discussion to be had
about how many times in the Ford case,
as I mentioned,
it talks about residents of the state inform injuries
and the like.
It's not as if they abandoned this notion
that the accident locus,
the injury, and the residents of the plaintiffs
should no longer be considered as facts to be determined
this case.
-: Okay, I'm gonna- -: Cut me off?
(group laughing)
-: I understand. -: Thank you very much.
-: Thank you for doing that so delicately, Your Honor.
(woman laughing)