Ricardo Martinez v. Armour Pharmaceutival Company ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1504, 08-2146
C ARLOS A BAD, et al., on their own behalf and
that of others similarly situated,
Plaintiffs-Appellants,
v.
B AYER C ORPORATION, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
MDL No. 986 JFG, No. 93 C 7452—John F. Grady, Judge.
No. 08-3101
C ARLOS M IGUEL P ASTOR, et al.,
Plaintiffs-Appellants,
v.
B RIDGESTONE/F IRESTONE
N ORTH A MERICAN T IRE, LLC, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 04 C 5812—Sarah Evans Barker, Judge.
A RGUED A PRIL 1, 2009—D ECIDED M AY 1, 2009
2 Nos. 08-1504, 08-2146, 08-3101
Before P OSNER, E VANS, and T INDER, Circuit Judges.
P OSNER, Circuit Judge. We have consolidated for
decision two appeals (Abad and Pastor) that present
similar issues concerning the doctrine of forum non
conveniens (“inappropriate forum”). The doctrine allows a
court to dismiss a suit if there are strong reasons for
believing it should be litigated in the courts of another,
normally a foreign, jurisdiction. E.g., Sinochem Int’l Co. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 429-30 (2007);
In re Factor VIII or IX Concentrate Blood Products Litigation,
484 F.3d 951, 954-56 (7th Cir. 2007). In both our cases the
plaintiffs are Argentine citizens, resident in Argentina,
who filed products-liability suits in federal district courts
against American manufacturers under the diversity
(technically, the alienage, 28 U.S.C. § 1332(d)(2)(B)) juris-
diction for injuries sustained in Argentina. In each case
the district judge, on the defendants’ motion, after con-
siderable pretrial discovery, invoked forum non conveniens
and dismissed the case in favor of the courts of Argentina.
In re Factor VIII or IX Concentrate Blood Products Litigation,
531 F. Supp. 2d 957 (N.D. Ill. 2008); In re Bridgestone/
Firestone, Inc. Tires Products Liability Litigation, No. 04 C
5812 (S.D. Ind. Jan. 31, 2007). The plaintiffs have appealed;
dismissal of a case on grounds of forum non conveniens is
deemed a final judgment appealable under 28 U.S.C. § 1291even though it does not end the litigation. Mañez v.
Bridgestone Firestone North American Tire, LLC, 533 F.3d 578,
583-84 (7th Cir. 2008).
The plaintiffs press on us language, from a leading case
that deals with the related doctrine of abstention in
Nos. 08-1504, 08-2146, 08-3101 3
favor of a parallel proceeding in another court, about the
“virtually unflagging obligation of the federal courts to
exercise the jurisdiction given them.” Colorado River
Conservation District v. United States, 424 U.S. 800, 817
(1976). The defendants counterpunch with the well-sup-
ported assertion that a ruling granting a motion to
dismiss on the basis of forum non conveniens can properly
be reversed only if the judge in granting the motion
was guilty of an abuse of discretion. Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 257 (1981); In re Factor VIII or IX
Concentrate Blood Products Litigation, supra, 484 F.3d at
954, 956; Scottish Air Int’l, Inc. v. British Caledonian Group,
PLC, 81 F.3d 1224, 1232 (2d Cir. 1996). That is a deferential
standard of appellate review, designed for cases in
which the first-level decision-maker is asked to apply a
general standard that requires him to balance a num-
ber of competing considerations. As long as the judge
doesn’t commit a demonstrable factual error, or an error
of law, his decision is unlikely to be reversed. There are
two reasons. It is difficult to pin error on a judgment
based on a comparison of imponderables, as is the charac-
ter of most standards. And the main responsibility of
appellate courts—to declare and elaborate principles of
law and police compliance with those principles by the
first-level decision-makers—is not engaged in reviewing a
decision that involves weighing the unique circumstances
of a particular case rather than creating or articulating a
legal rule or principle. These are “case-specific rulings,
which, even if they do not compose a consistent pattern
across similar cases (the possibility inherent in deferential
appellate review—deference implying that the appellate
4 Nos. 08-1504, 08-2146, 08-3101
court might well have affirmed an opposite ruling by the
district court), do not unsettle the law because the rulings
set forth no general propositions of law.” Thomas v. General
Motors Acceptance Corp., 288 F.3d 305, 308 (7th Cir. 2002).
The plaintiffs do not deny that abuse of discretion is the
applicable principle of appellate review in forum non
conveniens cases but they say that the judge’s thumb has to
be on one side of the scale—that he must deny the motion
to dismiss unless the balance of relevant factors inclines
very steeply in favor of dismissal, because of the presump-
tion that we mentioned (the “unflagging obligation”) in
favor of giving the plaintiff his choice of courts. This is
provided of course that there is subject-matter and per-
sonal jurisdiction, and venue, in the court in which the
plaintiff has sued, but these conditions are satisfied in
this case. Indeed, the plaintiffs argue that an Argentine
court would not exercise jurisdiction over a case that had
initially been filed in a foreign country, but this appears
not to be true, see, e.g., Satz v. McDonnell Douglas Corp.,
244 F.3d 1279, 1282-83 (11th Cir. 2001), and if, contrary
to what we believe, it should turn out to be true, the
plaintiffs could resume suit in the United States. The
judge in Pastor explicitly conditioned dismissal on the
right to resume the suit in her court if the Argentine
courts refuse to exercise jurisdiction. The judge in Abad did
not, but achieved the same result by stating that the
dismissal was without prejudice and hence does not
have res judicata effect.
The plaintiffs are right that there is a presumption in
favor of allowing a plaintiff his choice of courts rather
Nos. 08-1504, 08-2146, 08-3101 5
than insisting that he choose the optimal forum, as we
explained in U.S.O. Corp. v. Mizuho Holding Co., 547 F.3d
749, 752-53 (7th Cir. 2008), though it is not so powerful a
presumption as they think. A case should not be lightly
shifted from one court to another, forcing the plaintiff to
start over, especially when the rules of personal jurisdic-
tion often force a plaintiff to litigate on the defendant’s
home turf. Yet in the two cases before us the plaintiffs
could have sued—all concede—in their own nation’s
courts, the courts of Argentina, where the defendants
would have been in the uncomfortable position of being
giant American corporations accused of killing and injur-
ing citizens of Argentina. (Or so one might think; but of
course the defendants want to be in the Argentine, not
the American, courts.)
We are not saying that the plaintiffs should have sued
in Argentina. They were entitled to sue these American
corporations in American courts. They say they are
entitled to all the litigation rights of an American citizen
because of a treaty between the United States and Argen-
tina which says just that. Treaty of Friendship, Commerce
and Navigation Between Argentina and the United States,
July 27, 1853, Art. VIII, 10 Stat. 1005. Even without the
treaty, we would agree that a foreign plaintiff has the
same rights in an American court as an American citizen
has, see In re Factor VIII or IX Concentrate Blood Products
Litigation, supra, 484 F.3d at 956—discrimination against
foreign litigants should be unthinkable in this cosmopoli-
tan age of commercial globalization. It should make no
difference that the plaintiffs are Argentines rather than
Alaskans. But a suit by our plaintiffs in Illinois or a suit
6 Nos. 08-1504, 08-2146, 08-3101
in Florida (where the Pastor suit was originally filed)
would be a case of a “plaintiff [who] is suing far from
home,” and in such a case “it is less reasonable to
assume that the forum [chosen by the plaintiff] is a con-
venient one” and therefore the presumption in favor of
allowing the plaintiff to stay in the court of his choice is
weakened. Id.; see Piper Aircraft Co. v. Reyno, supra, 454
U.S. at 266; Iragorri v. United Technology Corp., 274 F.3d 65,
72 (2d Cir. 2001) (en banc).
The district judge in Pastor said that she was applying a
“neutral” rule of forum non conveniens, implying, the
plaintiffs argue, that she failed to apply the presumption
in favor of their choice to sue in the United States. But
when the judge’s statement is read in context, it is
apparent that all she meant was that since the plaintiffs
were foreign, relegating them to litigate in the courts of
their home country would not impose on them as great a
hardship as when a ruling of forum non conveniens
would eject the plaintiff from his home court and send
him to the defendant’s home court in another country.
When the plaintiff wants to sue on the defendant’s home
turf, and the defendant wants to be sued on the plain-
tiff’s home turf, all really that the court is left to weigh is
the relative advantages and disadvantages of the alterna-
tive forums. In such a case there is no reason to place a
thumb on the scale, since there is no prima facie reason
to think a plaintiff discriminated against by being sent
to his home court or a defendant discriminated against
by being forced to stay and defend in his home court.
One can find strong language about the plaintiff’s right
to his chosen forum in many judicial opinions, such as
Nos. 08-1504, 08-2146, 08-3101 7
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947), but they
usually are referring to an American plaintiff wanting
to litigate in an American rather than foreign court, that
is, to a plaintiff who has sued in his home court and
wants to stay there. Moreover, while “in times past, a
dismissal for forum non conveniens was a relatively
infrequent occurrence . . . , the tremendous growth in
international commerce, travel, and interdependence
since World War II has increased the number and variety
of cases in which a foreign court would be a more conve-
nient forum.” 14D Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper, Federal Practice and Procedure:
Jurisdiction § 3828, p. 623 (3d ed. 2007).
It is especially odd for the plaintiffs in the Pastor case
to describe the courts of Argentina as “foreign,” and to
quote as if in support of their position the statement in
Lehman v. Humphrey Cayman, Ltd., 713 F.2d 339, 346 (8th
Cir. 1983) (emphasis added), that “the fact that the de-
fendants are located in this country is one indication
that it would be less burdensome for the defendants to
defend suit in this country than it would be for [the
plaintiff] to litigate in a foreign country.” To Argentines,
Argentina is not a foreign country. The implication of the
plaintiffs’ argument is that if they were opposing in an
Argentine court a motion to dismiss on grounds of forum
non conveniens filed by an American defendant, they
would lose because the treaty we cited had turned them
into Americans!
When application of the doctrine would send the plain-
tiffs to their home court, the presumption in favor of
8 Nos. 08-1504, 08-2146, 08-3101
giving plaintiffs their choice of court is little more than a
tie breaker. And so our focus in these cases must be on
particularized circumstances that lean in favor of U.S.
courts or foreign courts. For guidance judges often turn
to a multifactor test for applying forum non conveniens
that the Supreme Court laid down more than sixty years
ago, in Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508-09.
American law has long been hospitable to multifactor
tests—maybe too hospitable. Menard, Inc. v. Commissioner,
2009 WL 595587, at *2 (7th Cir. Mar. 10, 2009); Sullivan
v. William A. Randolph, Inc., 504 F.3d 665, 671 (7th Cir.
2007); Short v. Belleville Shoe Mfg. Co., 908 F.2d 1385, 1394
(7th Cir. 1990); United States v. Borer, 412 F.3d 987, 992 (8th
Cir. 2005). The factors that the Gulf Oil opinion deemed
relevant to whether to dismiss a suit on the basis of
forum non conveniens form quite a laundry list:
the relative ease of access to sources of proof; availabil-
ity of compulsory process for attendance of unwilling,
and the cost of obtaining attendance of willing, wit-
nesses; possibility of view of premises, if view would
be appropriate to the action; and all other practical
problems that make trial of a case easy, expeditious
and inexpensive. There may also be questions as to
the enforceability of a judgment if one is obtained. The
court will weigh relative advantages and obstacles
to fair trial. It is often said that the plaintiff may not, by
choice of an inconvenient forum, “vex,” “harass,” or
“oppress” the defendant by inflicting upon him ex-
pense or trouble not necessary to his own right to
pursue his remedy . . . . Administrative difficulties
follow for courts when litigation is piled up in con-
Nos. 08-1504, 08-2146, 08-3101 9
gested centers instead of being handled at its origin.
Jury duty is a burden that ought not to be imposed
upon the people of a community which has no rela-
tion to the litigation. In cases which touch the affairs
of many persons, there is reason for holding the trial
in their view and reach rather than in remote parts of
the country where they can learn of it by report only.
There is a local interest in having localized contro-
versies decided at home. There is an appropriateness,
too, in having the trial of a diversity case in a forum
that is at home with the state law that must govern
the case, rather than having a court in some other
forum untangle problems in conflict of laws, and in
law foreign to itself.
The Court prefaced the list with the rather alarming
statement that “it has not been attempted to catalogue the
circumstances which will justify or require either grant or
denial of remedy. The doctrine leaves much to the dis-
cretion of the court to which plaintiff resorts.” 330 U.S. at
508. Thus, long as it is, the list is incomplete. That gives
a party free rein to suggest any reason that occurs to him
for why the case should be litigated in one court rather
than another. But because there is a list, and a list spon-
sored by the Supreme Court, albeit in a case more than
half a century old, parties find it difficult to resist trying to
make their case correspond to the items in the list, however
violent a dislocation of reality results. And so the plaintiffs
in our two cases argue that the United States has a greater
interest in the litigation than Argentina because the
defendants are American companies, while the de-
fendants argue that Argentina has a greater interest than
10 Nos. 08-1504, 08-2146, 08-3101
the United States because the plaintiffs are Argentines. The
reality is that neither country appears to have any interest
in having the litigation tried in its courts rather than in the
courts of the other country; certainly no one in the govern-
ment of either country has expressed to us a desire to have
these lawsuits litigated in its courts. For this is ordinary
private tort litigation that “implicates,” as some judges like
to say, no national interest. So rather than proceed down
the list we shall simply consider whether the district judge
in either case was unreasonable in deciding that, given the
circumstances of each case, the remaining litigation should
be conducted in Argentina rather than in Illinois or Florida.
Abad is a class action on behalf of some 600 Argentines,
but a class action that, along with class actions by groups
of citizens from other foreign countries, was carved out of
a much larger, long-running class action. In these actions,
hemophiliacs claim that they (or their decedents) were
infected with the AIDS virus because the defendant
manufacturers of the clotting factor that hemophiliacs take
to minimize bleeding failed to eliminate (as they could
have done) the virus from donors’ blood from which the
clotting factor was made. The class members had acquired
and used and become infected by the defendants’ blood
solids in Argentina.
By virtue of a ruling by the district court that neither
side questions, the defendants’ motion to dismiss the suit
on grounds of forum non conveniens was deferred until
the completion of the plaintiffs’ pretrial discovery. The
remaining discovery will have to be conducted in Argen-
tina because that is where the members of the class are
Nos. 08-1504, 08-2146, 08-3101 11
located—some of whom, at least, the defendants would
like to depose, along with obtaining their medical records.
The plaintiffs point out that the depositions and docu-
ments obtained in the discovery they’ve conducted of the
defendants will have to be translated into Spanish if the
suit is litigated there. But by the same token the deposi-
tions and documents obtained in the defendants’ dis-
covery in Argentina would have to be translated into
English were the case tried in Chicago.
The plaintiffs point out that their database of discovery
materials in Chicago contains 12 million documents,
whereas the discovery in Argentina would, they say, be
limited to their medical reports. But obviously the plain-
tiffs are not going to submit 12 million documents to an
Argentine, or any other, court; and since the class has some
600 members, deposing them and collecting medical
records and other documentary materials relating to their
injuries and damages and translating all these materials
from Spanish to English would be a formidable undertak-
ing too. Had the plaintiffs presented a realistic estimate of
the quantity of discovery materials in English that would
be submitted to the Argentine court, and of the cost of
translating them into Spanish, we would give the estimate
substantial weight. They have not done so, and, in the
absence of any actual evidence of relative burdens, costs of
translation must be considered a wash.
The plaintiffs argue that under Argentine choice of law
rules the substantive law that would be applied if this
case were litigated in an Argentine court would be Ameri-
can rather than Argentine law. If true, this would be a
powerful argument for leaving the case in Chicago. But as
12 Nos. 08-1504, 08-2146, 08-3101
near as we can determine, it is false, though certainty
eludes us because of a dearth of cases or other legal
materials from Argentina that bear on the question.
In most U.S. jurisdictions, even those that use a “most
significant relationship” test to resolve conflict of laws
issues in tort suits, there is a practical presumption that
the law of the place where the tort occurred (“lex loci
delicti”) governs the substantive questions in the suit. E.g.,
Carris v. Marriott International Inc., 466 F.3d 558, 560 (7th
Cir. 2006) (Illinois law) (describing lex loci delicti as the
“default rule” of choice of law in tort cases even in juris-
dictions that have embraced “most significant relation-
ship” or other alternative choice of law rules); Spinozzi v.
ITT Sheraton Corp., 174 F.3d 842, 844-45 (7th Cir. 1999)
(same); In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1016
(7th Cir. 2002) (Indiana law). And the place where the
tort occurred is where the injury occurred, which in the
present cases was Argentina, rather than where the
conduct (in this case the manufacture of the clotting
protein) that caused the injury occurred; for “there is no
tort without an injury.” Rozenfeld v. Medical Protective Co.,
73 F.3d 154, 156 (7th Cir. 1996).
As we explained in the Spinozzi case, “in the absence
of unusual circumstances, the highest scorer on the
‘most significant relationship’ test is—the place where
the tort occurred. For that is the place that has the
greatest interest in striking a reasonable balance among
safety, cost, and other factors pertinent to the design
and administration of a system of tort law.” 174 F.3d at
844-45. That is particularly true when the place of the
Nos. 08-1504, 08-2146, 08-3101 13
accident is also the place in which the victims were
injured and were resident, for that offsets the argument
that the jurisdiction of the defendant has an interest in
regulating the conduct of its people and firms. Victim
location and injurer location are valid considerations.
But when they point to two different jurisdictions they
cancel out, leaving the place where the injury (and hence
the tort) occurred as the presumptive source of the law
governing the accident. So if these cases were to be tried
in American courts, in all likelihood the law of Argentina
would govern the substantive issues.
And if instead the cases are tried in Argentina? Argen-
tina is a civil law country, and its law is heavily influenced
by the law of other civil law countries, especially the law
of France and of Spain and more especially the
Napoleonic Code, which remains the basis of Spanish as
well as French law. Mary Ann Glendon, Paolo G. Carozza
& Colin B. Picker, Comparative Legal Traditions in a
Nutshell § 11, p. 46 (3d ed. 2008); Andrew J. McClurg,
Adem Koyuncu & Luis Eduardo Sprovieri, Practical Global
Tort Litigation: United States, Germany and Argentina 37
(2007); Lisandro A. Allende & Enrique Schinelli Casares,
“Product Liability in Argentina: Ten Years of the Con-
sumer Protection Law,” Liability for Products in a Global
Economy 1, 2 (Spec. Issue 2004). Article 3 of the Napoleonic
Code has been interpreted as adopting lex loci delicti. 1 H.
Batiffol & P. Lagarde, Droit international privé 321-36 (7th
ed. 1981); Symeon Symeonides, “Louisiana’s New Law of
Choice of Law for Tort Conflicts: An Exegesis,” 66 Tulane
L. Rev. 677, 680 n. 13 (1992); Symeonides, “Exploring the
‘Dismal Swamp’: The Revision of Louisiana’s Conflicts
14 Nos. 08-1504, 08-2146, 08-3101
Law on Successions,” 47 La. L. Rev. 1029, 1104 (1987). That
is also the choice of law rule in Spain. Diego P. Fernández
Arroyo, Miguel Checa Martínez & Pilar Maestre Casas,
“Spain,” Private International Law—Supp. 18, p. 52
(Aug. 2008).
So an Argentine court would probably apply Argentine
law in this case, since Argentina is the place in which the
plaintiffs, who are residents of that nation, were injured
as a consequence of the defendants’ alleged wrongful
conduct. See also Werner Goldschmidt, “Argentina:
Draft Code of Private International Law” art. 34, 24 I.L.M.
269, 281, 1985 WL 204573 (Mar. 1985). It is true that the
district judge in Abad predicted that an Argentine court
would apply U.S. law rather than Argentine law (on
what basis is unclear); that, as just explained, we dis-
agree with him; and that an error of law can vitiate a
discretionary judgment. But not if correcting the error
reinforces the judgment, as it does here, by rehabilitating
an argument in favor of the judge’s result that he rejected.
The superior competence of the Argentine courts to
decide the merits of Abad is especially great because of
the dearth of Argentine legal materials relating to the
critical question of what the parties call “alternative
causation theories” but is more informatively called the
“market share” approach to tort causation. As in the
DES cases in the United States, e.g., Sindell v. Abbot Labora-
tories, 607 P.2d 924 (Cal. 1980), the plaintiffs do not know
which blood-solids manufacturer or manufacturers
made the blood solids that they took. In such a case an
attractive approximation to the responsibility of each
Nos. 08-1504, 08-2146, 08-3101 15
manufacturer who might have been the supplier of the
blood solids to the plaintiff is the manufacturer’s share
of the relevant market for those blood solids; and the
relevant market is Argentina.
We cannot be sure that the Argentine courts would
impose market-share liability. But causation is generally
treated similarly by U.S. and Argentine courts, McClurg,
Koyuncu & Sprovieri, supra, at 98. And Maria Morena
del Rio & Cecilia Victoria, “Argentina,” International
Comparative Legal Guide: Product Liability 2008 § 2.3 (Global
Legal Group 2008), p. 68, www.iclg.co.uk/Khadmin/
Publications/pdf/2115.pdf (visited Apr. 22, 2009), state
that Argentine courts would either apply such an ap-
proach, or, what would be even better from a plaintiff’s
standpoint, impose joint and several liability on all pro-
ducers who might have supplied the defective product
to the plaintiff. But whether those courts would
recognize either approach does not bear on whether to
keep the litigation in the United States, since, as we said,
an American court would apply the tort law of Argentina,
including of course its causal principles. Rather, the
uncertainty of Argentine law is a compelling reason why
this case should be litigated in Argentina rather than in
the United States. When the decision of a case is uncertain
because the orthodox sources of law do not provide
adequate guidance (apparently no code provision or
judicial decision in Argentina accepts or rejects market-
share liability), the court asked to decide must make
law, in this case Argentine law; and an Argentine court
is the more competent maker of Argentine law—more
competent in the sense of more legitimate, but also
16 Nos. 08-1504, 08-2146, 08-3101
more competent in the sense of being better able to
decide the case correctly because more at home in the
relevant legal tradition than an American court would be.
Pastor, our second case, is a wrongful-death suit growing
out of a fatal auto accident in Argentina when a Ford
Explorer, an SUV equipped with tires manufactured by
Bridgestone/Firestone, rolled over. The suit, originally
filed in a state court in Florida and removed to a federal
district court there, charges the defendants with defects
in the design, manufacture, and testing of the vehicle
and its tires. The suit, one of a number of similar suits, was
sent by the Multidistrict Litigation Panel to the federal
district court in Indianapolis for pretrial discovery, but it
will return to Florida for trial if we reverse the dismissal.
There is no issue of “alternative causation theories” in
this rather routine products-liability case, although some
uncertainty remains about Argentine tort law because, so
far as we can determine, the civil code and judicial deci-
sions in Argentina do not address many of the issues that
can arise in an accident case. The district judge correctly
ruled that the law applicable to the suit is Argentine law,
and, other things being equal, an Argentine court is, as
we said, more competent than an American court to
apply Argentine law, and, a fortiori, to create it, which
may be necessary, though this is less likely in Pastor than
in Abad.
The plaintiffs point out that the district court was
required to apply the choice of law rules of the state in
which the suit was originally filed. Barron v. Ford Motor
Co. of Canada, Ltd., 965 F.2d 195, 197 (7th Cir. 1992); In re
Nos. 08-1504, 08-2146, 08-3101 17
Air Disaster at Ramstein Air Base, 81 F.3d 570, 576 (5th Cir.
1996). That is Florida, and they argue that a Florida
court would select the tort law of Florida, not of Argentina,
to govern those issues. But the rule in Florida is lex loci
delicti, Bishop v. Florida Specialty Paint Co., 389 So. 2d 999,
1001 (Fla. 1980); Connell v. Riggins, 944 So. 2d 1174, 1176-77
(Fla. App. 2006); Barron v. Ford Motor Co. of Canada, Ltd.,
supra, 965 F.2d at 197-98 (Florida law), unless there are
special circumstances, as in the cases the plaintiffs cite,
such as Crowell v. Clay Hyder Trucking Lines, Inc., 700 So. 2d
120 (Fla. App. 1997). That case arose from a hit-and-run
accident in Georgia between citizens of Florida. The
question was whether the truck that collided with the
plaintiff’s car was owned by the defendant, in which
event the defendant would be liable for the driver’s
negligence in accordance with the doctrine of respondeat
superior. The court sensibly ruled that the question of
ownership should be answered by reference to Florida
law. For it was a question of agency law, and if the defen-
dant was indeed the owner this meant that both agent
and principal, along with the plaintiff, were Floridians.
Proprietors Ins. Co. v. Valsecchi, 435 So. 2d 290 (Fla. App.
1983), also relied on by the plaintiffs, is also remote from
our case. A plane crashed in mid-flight and the estates
of the passengers sued the pilot and owners of the plane.
The place of the crash had nothing to do with the ac-
cident or the plaintiffs. In another case cited by the plain-
tiffs, the law of the place of the accident was not applied
because it was repugnant to Florida law. Futch v. Ryder
Truck Rental, Inc., 391 So. 2d 808 (Fla. App. 1980). These
cases illustrate that in American courts lex loci delicti is
18 Nos. 08-1504, 08-2146, 08-3101
merely a practical presumption, and not a rule, but a
presumption that appears to be applicable to this case.
The plaintiffs have collected a mass of documentary
material relating to the design of the Ford car and
Bridgestone tires that they contend was negligent, and
some of those documents would have to be translated
into Spanish if the trial is held in Argentina. Because
Pastor is not a class action and there are no exotic issues
of causation, the amount of discovery to be conducted
in Argentina will be limited. But it will not be trivial; nor
will it, as the plaintiffs suggest, be limited to medical
records. The defendants intend to present evidence that
the accident was caused by factors other than the design
or manufacture of the vehicle or of its tires, such as poor
maintenance in Argentina, where the vehicle was pur-
chased from an automobile dealer. Much of this evidence,
moreover, will come from third parties in Argentina, who
cannot be compelled to testify in the United States; this
weighs in favor of the dismissal.
And while the plaintiffs probably are right that their
translation burden will be greater if the case is litigated
in Argentina than the defendants’ would be if the case
remained in the United States, we cannot determine
how much greater because they have not indicated the
cost. The figure of $4 to $5 million that they press on us
has not been substantiated, and their statement that “it is
tremendously significant” that the SUV itself, described
extravagantly as “perhaps the single most critical piece
of evidence” in the case, is at present in Chicago and
would have to be shipped back to Argentina for the trial,
Nos. 08-1504, 08-2146, 08-3101 19
is desperate. The vehicle is unlikely to be dragged into
the courtroom for inspection by the judge (there is no
civil jury in Argentina, McClurg, Koyuncu & Sprovieri,
supra, at 76-77, 81), and the plaintiffs present no evidence
that shipping even a damaged vehicle from Illinois to
Argentina would be costly; think of the millions of
vehicles manufactured abroad that are competitive in
the United States market despite the shipping cost.
The plaintiffs further argue that court congestion is
worse in Argentina than in the United States. But they
rely for that argument on delay in suits litigated decades
ago and do not explain why they failed to obtain up-to-
date information about court congestion in Argentina.
In support of the district judge’s order we note that
the case will not remain in Indianapolis in any event; it
will go to Florida for trial if it does not go to Argentina.
Proceedings in two courts would not be avoided even if
we reversed the order dismissing the suit.
In neither case did the judge abuse his or her discre-
tion, and therefore the judgments are
A FFIRMED.
5-1-09