Petitioners Reply Brief — Piper Aircraft Co. v. Reyno

Office-Supreme Court, US.

FILED

No, 80-883 AUG 14 198)

STEVAS, —

CLERK |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

HARTZELL PROPELLER, INC.,

v. Petitioner,

GAYNELL REYNO,

Respondent.

On Writ of Certicrari to the United States

Court of Appeals for the Third Circuit

[Consolidated for Argument with No. 80-848]

REPLY BRIEF FOR PETITIONER

HARTZELL PROPELLER, INC.

WARNER W. GARDNER *

NANCY J. BREGSTEIN

SHEA & GARDNER

1800 Massachusetts Avenue, N.W.

Washington, D.C. 20086

(202) 828-2000

RONALD C. Scorr

ADRIAN J. GoRDON

Kaus, EVANS AND BYRNE KRUSEN EVANS AND BYRNE

SHea & GARDNER — 1. —— gy — — —

C el elphia, Pennsylvania

9 (215) 928-4400

Attorneys for Petitioner,

Hartzell Propeller, Inc.

* Counsel of record

August 14, 1981

“WILSON - EPzs PRINTING CO., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

ARGUMENT

I. MATTERS NOT IN ISSUE

II. THE WRIT WAS NOT IMPROVIDENTLY

GRANTED

III. RESPONDENT HAS NO RIGHT TO THE

FORUM WHERE SHE EXPECTS TO MAXI-

MIZE HER PROSPECTS OF RECOVERY .......

IV. THE COURTS OF THE UNITED KINGDOM

CONSTITUTE AN APPROPRIATE ALTER-

NATIVE FORUM FOR THIS LITIGATION....

CONCLUSION

Page

10

16

ii

TABLE OF AUTHORITIES

Cases:

Abouchalache v. Hilton International Co., 464

F. Supp. 94 (S.D.N.Y. 1978), aff'd mem., 628

F.2d 1844 (2d Cir. 1980) ————————— 9

Alwataary General Trading & Agricultural De-

velopment Co. v. M. V. Sounion, No, 80 Civ. 5374

(S.D.N.Y. June 12, 1981) 10

Calavo Growers of California v. Generali Belgium,

682 F.2d 963 (2d Cir. 1980), cert. denied, 101

Page

rene RA I, RE TA NE nn 12

Canada Malting Co. v. Paterson Steamships, Ltd.,

. 2, 12, 15

Dahl v. United Technologies Corp., 472 F. Supp.

696 (D. Del. 1979), af d, 682 F.2d 1027 (3d Cir.

1980) 9, 11, 12, 16

Danser v. Firestone Tire & Rubber Co., 86 F. R. D.

ee nr 9, 13

Davis v. Passman, 442 U.S. 228 (1979 14

DeMateos v. Texaco, Inc., 562 F.2d 895 (3d Cir.

1977), cert. denied, 485 U.S, 904 (1978) 3, 4,5

DeSairigne v. Gould, 88 F. Supp. 270 (S.D.N.Y.), 5

af d, 177 F.2d 515 (2d Cir. 1949), cert. denied,

889 U.S. 912 (1950) 9

Erie Railroad v. Tompkins, 304 U.S. 64 (1938). 4

Ferne v. Chadderton, 368 Pa. 191, 69 A.2d 104

(1949) a4 * 14

Fitzgerald v. Texaco, Inc., 521 F.2d 448 (2d Cir.

1975), cert. denied, 423 U.S. 1052 (1976) 9

Grodinsky v. Fairchild Industries, Inc., 507

F. Supp. 1245 (D. Md. 1980) i 9, 11, 13

Gulf Oil Corp. v. Gilbert, 380 U.S. 501 (1947) .......passim

Haddigan v. Harkins, 441 F. 2d 844 (3d Cir. 1970). 14

Hoffman v. Blas i, 868 U.S. 335 (1960) 11

Karr v. Sixt, 146 Ohio St. 2d 527, 67 N. E. 2d 331

DFF enen 14

Keaton v. Ribbeck, 58 Ohio St. 2d 448, 391 N. E. 2d

ee eee 14

Kennedy v. Byers, 107 Ohio St. 90, 140 N. E. 630

%% TVT 14

Klazon Co. v. Stentor Electric Manufacturing Co.,

$18 U.S. 487 (1941) 4

iii

TABLE OF AUTHORITIES—Continued

Page

Michell v. General Motors Corp., 489 F. Supp. 24

eee eee

Phoeniæ Canada Oil Co. v. Texaco, Inc., 78 F. R. D.

. 9

Prince v. Adams, 229 Pa. Super. 150, 324 A. 2d 358

9 14

Reavis v. Gulf Oil Corp., 85 F. R. D. 666 (D. Del.

1980) . 9

Rubeck v. Huffman, 54 Ohio St. 2d 20, 374 N. E. 2d

e eee 14

Sea- Land Services, Inc. v. Gaudet, 414 U.S. 573

(1974) va. 13, 14

Schertenleib v. Traum, 589 F.2d 1156 (2d Cir.

1 SPRMTRDE OTRAS GRATE FBI LAREN ENS A 9,11

Spangler v. Helm’s New York-Pittsburgh Motor

Express, 396 Pa. 482, 153 A.2d 490 (1959) ........ 14

Soares v. McClosky, 466 F. Supp. 703 (E.D. Pa.

. 14

The Bremen v. Zapata Off-Shore Co., 407 U.S.

r NRO ERES sR ESLAE OI 7

United States v. Memphis Cotton Oil Co., 288 U.S.

D a csiapeteane 14

Van Dusen v. Barrack, 376 U.S. 612 (1964) 5

Statutes:

The Jones Act, 46 U.S.C. § 688 (1976) 3

re CRIT ckscctedeccrcscecscessiveccssccsoce 11

Ohio Rev. Code Ann. § 2125.02 (1976) 13, 14

42 Pa. Cons. Stat. Ann. § 8301 (Purdon) formerly

Pa. Stat. Ann. Tit. 12, §§ 1601-02 (Purdon) ).... 18

e ccrseddssdnldadsecvsoccbiococeoososest 18

Damages (Scotland) Act 1976 §§ 1(4), 4, 10........ 18, 14

Other Authorities:

Currie, Change of Venue and the Conflict of Laws,

22 U. Chi. L. Rev. 405 (19866) . . . .. . . .. a 6-7

Dodson, “United Kingdom,” in Product Liability:

A Manual of Practice in Selected Nations

(1981) 11

iv

TABLE OF AUTHORITIES—Continued

Prosser, The Assault Upon the Citadel (Strict

Liability to the Consumer), 69 Yale L. J. 1099

„ —Üͤ—

W. Prosser, Law of Torte § 127 (4th ed. 1971)

H, Tebbens, International Product Liability

D ̃ ¾.h᷑——

The Law Commission and the Scottish Law Com-

mission, Liability for Defective Products

RETESET DIN AISA PC RI Go oR

Page

16

18

In THE

Supreme Court of the United States

OcToseR TERM, 1980

No. 80-8838

HARTZELL PROPELLER, INC.,

y, Petitioner,

GAYNELL REYNO,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

[Consolidated for Argument with No. 80-848]

REPLY BRIEF FOR PETITIONER

HARTZELL PROPELLER, INC.

MATTERS NOT IN ISSUE

Respondent does not challenge or even address the

greater part of petitioner Hartzell’s principal brief

(hereinafter Hz. Br. ——”).' We find no dispute of

the following specific points:

1 Petitioner Hartzell did not consent to the filing of either of the

two briefs amicus curiae that have been filed, and does not share

some of the views expressed in the brief filed by the amici in sup-

port of petitioners.

1. Respondent does not contest that at common law

and in admiralty a forwm non conveniens dismissal was

not barred by the prediction that the alternative forum

would apply law less favorable to the plaintiff [Hz. Br.

19-28]. Indeed neither Canada Malting Co. v. Paterson

Steamships, Ltd., 285 U.S. 418 (1982), nor the numer-

ous cases and articles supporting its result, are so much

as mentioned by respondent.

2. Respondent voices no disagreement with the propo-

sition that Gulf Oil Corp. v. Gilbert, 380 U.S. 501

(1947), requires a discretionary balancing of all factors

relating to the convenience of the litigation [Hz. Br.

24-27]. Indeed, she considers it useful at one point to

urge this point herself [Resp. Br. 18].

8. The settled rule that the district court may be re-

versed only for abuse of discretion [Hz. Br. 11-13] re-

ceives no adverse comment by respondent.

4. There is no dispute, but rather agreement [Resp.

Br. 20, 24), that the real parties plaintiff are foreign

[see Hz. Br. 14-15).

5. Apart from her claim that the Court of Appeals’

decision on choice of law is beyond review [see, e. g.,

Resp. Br. 7, 17-18], respondent makes no effort to jus-

tify in state law the intuition of the Court of Appeals

as to the “governmental interests” of Pennsylvania or

Ohio [Hz. Br. 85-44).

6. Finally, respondent does not disclaim but expressly

acknowledges that she brought suit in the United States

because she wished to take advantage of the usual Amer-

ican rule of strict liability and because she believes that

in this country “monetary judgments tend to be con-

siderably higher” [Resp. Br. 24-25; see Hz. Br. 44-48].

Her argument [Resp. Br. 19-26] as to the controlling effect of

the plaintiff's choice of forum is, of course, inconsistent with the

discretionary evaluation of all factors mandated by Gilbert.

We turn, accordingly, to the few points that respond-

ent has put in issue.

Il

THE WRIT WAS NOT IMPROVIDENTLY GRANTED

Respondent’s suggestion that the writ of certiorari

should be dismissed as improvidently granted seems to

reflect a desire to avoid an adverse judgment that is

‘plainly: warranted on the merits. The reasoning sup-

porting the suggestion is by no means clear, but seems

to be that the decision below “rests on choice of law”

[Resp. Br. 7, 15]. Respondent states that “[w]hether

or not a plantiff might defeat a motion to dismiss on

the ground of forum non conveniens because the law

_ of an alternative forum is less favorable to her cause of

action than the law of the forum hearing the motion is

irrelevant by reason of the choice of law analysis of the

Court of Appeals” [id. 17.“ Respondent misreads the

opinion below.

Obviously, the Court of Appeals, in holding against

dismissal on the ground that it would “work a change

®* Respondent also suggests obliquely that, whatever may be this

Court’s decision of this case, the holding of DeMateos v. Texaco,

Inc., 662 F.2d 895 (8d Cir, 1977), cert. denied, 485 U.S. 904 (1978),

“still prevails and remains unrepudiated” [Resp. Br. 17; see also

id. 6}. The point is difficult to understand. In holding as it did,

the Court of Appeals followed its prior ruling in DeMateos that a

dismissal for forum non conveniens should not work a change in

the applicable law; that is the very ruling now before this Court.

(It did not lead to reversal of the forum non conveniens dismissal

in DeMateos because the Third Circuit there agreed with the dis-

trict court that foreign law would govern wherever the case was

tried.) Far from being “as yet unassailed” [Resp. Br. 5], the

DeMateos ruling (insofar as it is applied to cases not involving the

Jones Act, 46 U.S.C. § 688, or other federal statute that is inter-

preted to confer mandatory federal court jurisdiction, see Hz. Br.

$4 n.50), is in square conflict with the rulings of the Second Circuit

and is challenged by petitioner herein.

4

in the applicable law” [A 189], had to conclude or ac-

cept that the United States court would indeed apply

different law than would a Scottish court.‘ Here, it de-

termined that whereas “Scotland probably would apply

its own law to all claims” [A 189], “American” law

would govern if the suit were tried here [A 139-1561.“

Thus, the Court of Appeals followed its earlier statement

in DeMateos “that a dismissal for forum non conveniens,

like a statutory transfer, ‘should not, despite its conveni-

ence, result in a change in the applicable law,’” and

squarely held: “Only when American law is not applica-

ble, or when the foreign jurisdiction would, as a matter

of its own choice of law, give the plaintiff the benefit

of the claim to which she is entitled here, would dismis-

sal be justified.” °

The principle that dismissal for forum non conveniens

will not be permitted if it deprives the plaintiff of “the

*The actual order of the Court of Appeals’ analysis does not

determine whether one or another of its component steps is properly

characterized as “holding” or “dictum”. In essence the Court of

Appeals held that (a) if there may be a change in law there can

be no dismissal [A 189-140] and (b) here, there would be such a

change in law [A 144-149, 162-156. The court might just as well

have said (a) there would be a change in law, so (b) there could

be no dismissal. The change in law ruling is equally necessary to

the decision whether stated first or last.

5 We have shown in our opening brief that the ruling below

both was patently wrong as to the Pennsylvania choice of law and

was derived in violation of the deference to state law required by

Brie Railroad v. Tompkins, 304 U.S. 64 (1988), and Klazon Co. v.

Stentor Elec. Mfg. Co., 318 U.S. 487 (1941). If the Court of

Appeals had concluded that Scots law would be applied by the

Pennsylvania as well as by the Scottish courts, it would not have

had occasion to apply the erroneous principle that dismissal may

not be granted if a change in law would result.

*A 189-140 (footnote omitted) (quoting DeMateos v. Texaco,

Inc., 562 F.2d 896, 899 (8d Cir. 1977), cert. denied, 485 U.S. 904

(1978) ).

5

benefit of the claim to which she is entitled here” [A

140] thus was essential to the Court of Appeals’ deci-

sion. Respondent’s suggestion that “the full record

does not reflect an adequate presentation of the question

upon which certiorari was granted” [Resp. Br. 16] is

frivolous.’

III

RESPONDENT HAS NO RIGHT TO THE FORUM

WHERE SHE EXPECTS TO MAXIMIZE HER

PROSPECTS OF RECOVERY

There runs through respondent’s arguments a convic-

tion that the judicial system can operate fairly only

when it produces the maximum prospect of recovery for

the plaintiff and the largest liability for the defendant.

We, to the contrary, have supposed as a general propo-

sition that the judicial system is supposed to be neutral

as between plaintiff and defendant. We submit that

none of respondent’s arguments for the virtual inviola-

bility of her choice of forum could appeal to a neutral

tribunal.

1. It must be remembered, despite the complexity of

the opinion below, that this is a very simple case, The

It also contredicts respondent's earlier position in this Court.

When she filed her brief in opposition to the petition for certiorari,

respondent unequivocally stated [Br. in Opp. 4-5 (emphasis

added) ]:

“The Court of Appeals reversed the District Court and held

that a dismissal by the American court would result in a

change of applicable law, the very prospect of such a change

and its consequences thereby precluding dismissal.

“This holding was initially enunciated in DeMateos v.

Texaco, Inc., which reflected the landmark decision of Van

Dusen v. Barrack by this Court that a transfer under 28

U.S.C. § 1404 (a) should not work a change in applicable law

as determined by the transferor court.”

6

accident occurred in Scotland. All the real parties plain-

tiff are Scottish. Three defendants concerned with the

maintenance and operation of the aircraft can be sued

only in the United Kingdom and already are being pur-

sued there by the relatives of the decedents whose estates

respondent represents. Witnesses as to the maintenance

of the aircraft and the inexperience of the pilot, and

the wreckage itself, are not subject to the process of

an American court. We urge that according to common

sense and elemental fairness this cannot be anything

but a Scottish case, and that the Court of Appeals lost

sight of simple basics in the complexity of its analysis.

2. We do not dispute the presumption that attaches

to a plaintiff’s choice of forum, especially his home

forum. This has consistently been recognized from Gil-

bert onward. But under the traditional approach this

presumption is greatly weakened when the plaintiff is a

foreigner who has journeyed to the forum to seek expected

litigation benefits her own country does not provide [Hz.

Br. 15.“ The presumption favoring the plaintiff’s choice

has, moreover, largely been eroded, whether the plaintiff

is American or foreign, in the more recent decisions of

three Circuits [see id, 16-17].

But respondent’s position is even more fundamentally

flawed. The traditional deference accorded a plaintiff's

choice of forum has never been intended to guarantee

a plaintiff, or preserve for his benefit, his selection of the

law that will govern the case. As Professor Currie has

stated, “one of the prime considerations in forum-shop-

ping has always been the search for a more favorable

law, and one of the grounds for invoking the doctrine of

forum non conveniens has always been that the plain-

tiff, in the choice of the forum, sought to obtain an in-

equitable advantage in terms of the law which the forum

would apply.” Currie, Change of Venue and the Con-

The sum of respondent’s answer on this point [Resp. Br. 20

n. 12] is a quotation from tho opinion of the Court of Appeals.

7

flict of Laws, 22 U. Chi. L. Rev. 405, 444 (1965). The

advantage, usually allowed to the plaintiff, is deemed in-

equitable once the court has determined that the criteria

for dismissing for forum non conveniens are satisfied,

for such a determination essentially signifies that the

plaintiff has misused the privilege of forum selection by

choosing a forum outside the range of appropriate

forums. Cf. Hz. Br. 21-22 n.32.

There is no merit, therefore, to the notion that a dis-

missal that may lead to the application of law less favor-

able to the plaintiff is precluded on the ground that it

will deprive the plaintiff of an advantage, in terms of

available causes of action or otherwise, to which she is

“rightfully entitled” [Resp. Br. 25]. To characterize

the advantage in such terms is to beg the question. There

exists no such unqualified “right” of forum selection, or

else there would be no doctrine of forum non conveniens

at all.

8. Respondent attempts to buttress her argument in

favor of an unreviewable right to sue wherever she sees

fit by claiming that such a rule would have the “desir-

able” effect of holding the defendant to the highest pos-

sible standard of accountability [Resp. Br. 7, 23]. There

are at least three answers to this contention, each suffi-

eient.ꝰ

First: It is for Scotland to determine the standards

that should govern liability to Scots arising out of an

accident occurring in Scotland.

This Court already has indicated its lack of sympathy for

respondent’s related claim that a plaintiff somehow is entitled to

the most favorable odds for the highest monetary judgment [Resp.

Br. 25]. See Gilbert, 830 U.S. at 510. So, too, it has recorded

serious doubts about the chauvinistic view that our own laws are

always superior to those of other nations and must therefore al-

ways be applied. See, e. ., The Breman v. Zapata Off-Shore Co.,

407 U.S. 1, 9 (1972).

Second: If, as respondent charges, petitioners have not

followed “competent and careful manufacturing prac-

tices” (Resp. Br. 24], then they will be liable under

Scots law of negligence and will be held accountable in

a Scottish court.“

Third: As we have shown [Hz. Br. 37-42], the Court

of Appeals plucked out of thin air the concept that Penn-

sylvania and Ohio have adopted the principle of strict

liability in order to discipline their local producers into

safe manufacture [A 147-49]. Respondent adopts the

same unsubstantiated premise. In fact, the courts of

those states consider that the doctrine of strict liability

was adopted in order to compensate the injured consumer

who lives or is injured in the state [Hz. Br. 38-42]. But

even if we were to assume that the prospect of strict

liability induces greater manufacturing care, ample in-

centive for United States manufacturers to conform to

the highest standard is provided by the fact that they

will be open to strict liability in cases arising out of ac-

cidents occurring in this country. There is neither a

shred of evidence in the record nor indeed any reason

to believe the allegations of amicus curiae that Ameri-

can aircraft manufacturers produce substandard goods

for foreign distribution.“ Indeed, an aircraft manufac-

turer does not know where its products eventually will

be used, and may expect them to fly over numerous

jurisdictions (many of which adhere to strict liability).

Such a manufacturer would have no reason for or way

of “designing and producing different [products] for

its different geographical markets.“

10 See the affidavit of Ronald Ian Kerr MacLeod [A 18]: “Upon

proof of negligence full damages will follow.” See also, e.g., H.

Tebbens, International Product Liability 49-53 (1979).

11 See Brief for Amicus Curiae Law Offices of Gerald C. Sterns

8, 15.

12 Michell v. General Motors Corp., 489 F. Supp. 24, 27 n.5 (N. D.

Ohio 1977) ; see Hz. Br. 42.

4. Respondent’s final point is that an especially strong

showing is required in support of a forwm non conveniens

motion when suit has been brought on the defendant’s

“home turf” and where the defendant’s economic capa-

bilities are “disproportionately greater” than the plain-

tiff’s [Resp. Br. 22-23]. We have no doubt that these

are legitimate factors for a district court’s consideration,

along with all of the others enumerated in Gilbert, but

we have no less doubt that these factors are not disposi-

tive. They were not so treated in either of the cases

cited by respondent,” or in any of the numerous cases

in which forum non conveniens motions have been

granted notwithstanding that the United States defend-

ants (usually corporate) were sued on their “home

turf.”

In any event, petitioner Hartzell has made whatever

showing would be required to outweigh the fact of resi-

dence in the forum jurisdiction.” Respondent treats the

issue as if “convenience” were a simple matter of how

far the defendant has to walk to the courtroom, such

that suit in the defendant’s “home” jurisdiction almost

by definition cannot be “inconvenient”. But this is not

what is at issue on a forum non conveniens motion. As

18 Reavis v. Gulf Oil Corp., 85 F. R. D. 666 (D. Del. 1980) ; Phoenix

Canada Oil Co. v. Texaco, Inc., 78 F.R.D. 445 (D. Del. 1978).

4 F. g., Dahl v. United Technologies Corp., 682 F.2d 1027 (3d

Cir. 1980); Schertenleib v. Traum, 589 F.2d 1156 (2d Cir. 1978);

Fitzgerald v. Texaco, Inc., 521 F.2d 448 (2d Cir. 1975), cert. de-

nied, 428 U.S. 1052 (1976); Grodinsky v. Fairchild Indus., Inc.,

507 F. Supp. 1245 (D. Md. 1981); Danser v. Firestone Tire &

Rubber Co., 86 F. R. D. 120 (S.D.N.Y. 1980); Abouchalache v.

Hilton Int'l Co., 464 F. Supp. 94 (S.D.N.Y. 1978), aff’d mem., 628

F.2d 1844 (2d Cir. 1980); DeSairigne v. Gould, 83 F. Supp. 270

(S. D. N. Y.), aff'd, 177 F.2d 515 (2d Cir. 1949), cert. denied, 389

U.S. 912 (1950).

145 In fact Hartzell, as opposed to Piper, neither is incorporated

nor has its principal place of business in Pennsylvania.

10

we have shown (supra pp. 5-6), this is a Scottish case,

brought by Scots because of a Scottish accident. Peti-

tioners here will be severely prejudiced by their inability

to join the owner, operator, or pilot of the aircraft in

any suit brought in a United States court, or to have

compulsory process in respect of Scottish evidence, in a

case in which there are serious allegations and evidence

of faulty maintenance and pilot error [A 97, 100-102,

108-112, 115-116]. See Alwataary General Trading &

Agricultural Development Co. v. M.V. Sounion, No, 80

Civ. 5874 (S.D.N.Y. June 12, 1981). We find no element

of fairness in a tactic, now endorsed by the court below,

that subjects petitioners to the risk that a jury will find

them liable while leaving outside the courtroom and be-

yond the jury’s view all of the defendants more im-

mediately involved in the accident and all of the United

Kingdom witnesses and evidence. It is in this sense that

the concept of “convenience” must be evaluated; and it

is evident that the mere fact that one of the two United

States defendants is located in Pennsylvania pales in

comparison to the factors favoring trial in Scotland.

IV

THE COURTS OF THE UNITED KINGDOM

CONSTITUTE AN APPROPRIATE ALTERNATIVE

FORUM FOR THIS LITIGATION

It has been a well-settled proposition, at least since

Gilbert, that “[i]n all cases in which the doctrine of

forum non conveniens comes into play, it presupposes at

least two forums in which the defendant is amenable to

process ....” Gilbert, 330 U.S. at 506-07 (quoted in

Resp. Br. 26; Hz. Br. 23). Gilbert says no more, how-

ever, than that there must be an alternative forum “in

which the defendant is amenable to process”; there is

no doubt that such is the case here.!“ Respondent (or the

16 Amicus Sterns has suggested, Brief at 16-18, that Scotland

may not be a “viable alternative forum” because of an unsupported

11

estates she represents) is “assured of [a] day in court”

[Resp. Br. 26].

Respondent would translate Gilbert’s requirement into

one of “an adequate remedy and law,” measured by a

comparative inquest into the rights, remedies, and pro-

allegation that “the availability of Scotland as an alternative forum

is dependent on some future act of acquiescence . . . by defendants.”

From this unsupported premise amicus Sterns reasons to the con-

clusion, drawn by analogy from 28 U.S.C. § 1404 (a) (1976) and

this Court’s construction of that statute in Hoffman v. Blaski, 363

U.S. 385 (1960), that an alternative forum does not exist because

jurisdiction over petitioners in Scotland exists only by their con-

sent. Our answer is two-fold:

As a matter of fact, there is absolutely nothing in the record in

this case indicating that the Scottish courts would not assume

jurisdiction over petitioners. Petitioners’ agreement to accept

service of process in Scotland [A 9, 17] obviated the need for any

further inquiry into the matter. Consent is a sufficient basis for

the exercise of a Scottish court’s jurisdiction (see Dodson, “United

Kingdom,” in Product Liability: A Manual of Practice in Selected

Nations 66 (1981)). Respondent herself has made no suggestion

that the Scottish courts would lack jurisdiction over petitioners.

As a matter of law, amicus’ reasoning from Hoffman v. Blaski

is untenable. The rationale of that decision is limited to construc-

tion of the statutory language “where [the action] might have

been brought”, and does not conform to the common law rule. Justice

Frankfurter so demonstrated in dissent. 368 U.S. at 364-65. As

the Second Circuit has explained in Schertenleib v. Traum, 589

F.2d 1156, 1163 (2d Cir. 1978),

“When the alternative forum is foreign, . . our courts have

difficulty discerning whether a nonresident defendant really

would be subject to jurisdiction in the foreign country with-

out his consent. Indeed, the court may receive conflicting ex-

pert opinions on this issue. If the defendant consents to suit

in the foreign alternate forum, and if that appears to be suffi-

cient under the foreign law, why waste the litigants’ money

and the court’s time in what is essentially an unnecessary and

difficult inquiry into the further intricacies of foreign juris-

dictional law?”

Accord, Dahl v. United Technologies Corp., 632 F.2d 1027, 1029 n.1

(8d Cir. 1980); Grodinsky v. Fairchild Indus., Inc., 507 F. Supp.

1245, 1250 n.3 (D. Md. 1981).

12

cedures offered in the alternative forum [Resp. Br. 8]."

This was not the approach followed by this Court in Can-

ada Malting, where no judgment was rendered on the

content of foreign law or inquiry made into the pro-

cedures that would be followed in the foreign court. But

even if a gloss were to be placed on the requirement of

an alternative forum, so that in some case an alterna-

tive forum might be found so deficient in law or pro-

cedure as to preclude dismissal, this is not such a case.

Scots law and the Scottish courts (with which our own

law and courts share a heritage and a fundamentally

similar jurisprudence) are plainly “adequate” in even

the most expansive sense of that word.

Respondent’s sole allegation of inadequacy of the Scot-

tish forum is that there she will be “(u]nable to prose-

cute causes of action for wrongful death and strict prod-

ucts liability, and [will be] limited solely to proving

negligence” (Resp. Br. 32-33.“ In the first place, under

17 Respondent herself at one point frames the requirement of

“an adequate remedy and law” as being satisfied if dismissal “will

not completely deprive [plaintiff] of the rights and advantages he

sought” [Resp. Br. 27 (emphasis added) J. The notion that the

alternative forum must provide the full compass of relief available

in federal court, see, ¢.g., id. 28, simply is without basis, and is

flatly inconsistent with this Court’s decision in Canada Malting,

where relegation of the plaintiff to a Canadian court most likely

deprived it of half of its potential recovery. 285 U.S. at 418; see

Hz. Br. 19 & n.28.

18 Respondent also claims [Resp. Br. 29 n.20] that Scottish

discovery procedures are less satisfactory than those available

in the federal courts. We doubt that judicial notice can extend to

a telephone conversation of counsel held two years before. Even if

it does, we find in the contents of that communication no basic

difference from American procedures. In any event, the alleged

differences hardly amount to the kind of procedural limitations

that would lead to a conclusion that the alternative forum was

inadequate. See, ¢.g., Dahl v. United Technologies Corp., 472

F. Supp. 696, 699 (D. Del. 1979), aff'd, 682 F.2d 1027 (8d Cir.

1980) ; Calavo Growers of California v. Generali Belgium, 682 F.2d

13

Scots law a decedent’s beneficiaries may bring an action

for wrongful death [A 18-19]. This is not substantially

different from the rule in most jurisdictions in the

United States (including Ohio and Pennsylvania), where

the action may be brought either by the personal repre-

sentative or by certain beneficiaries designated by stat-

ute,” but in either case is brought on behalf of the

statutory beneficiaries.” The Scots action for wrongful

death is governed by the Damages (Scotland) Act 1976

968 (2d Cir. 1980), cert. denied, 101 8. Ct. 871 (1981); Grodinsky

v. Fairchild Indus., Inc., 507 F. Supp. 1246, 1250-51 (D. Md. 1981);

Danser v. Firestone Tire & Rubber Co., 86 F.R.D. 120, 122

(S. D. N. v. 1980).

1 The first such statute was England’s Lord Campbell’s Act,

9 & 10 Vict., c. 93 (1846), which “become the prototype of American

wrongful-death statutes ... .” Sea-Land Services, Inc. v. Gaudet,

414 U.S. 678, 581 (1974).

2 Prosser, Law of Torts § 127, at 908-904 (4th ed. 1971). The

Ohio statute provides that “[a]n action for wrongful death must be

brought in the name of the personal representative of the deceased

person, but shall be for the exclusive benefit of the surviving

spouse, the children, and other next of kin of the decedent.” Ohio

Rev. Code Ann. § 2125.02 (1976) (Page). The Pennsylvania stat-

ute in effect at the time this suit was filed provided for suit by

the widow of a decedent, “or if there be no widow, [by] the per-

sonal representatives”, Pa. Stat. Ann. tit. 12, § 1601 (Purdon), but

provided further that the persons entitled to recover damages

„hall be the husband, widow, children, or parents of the deceased,

and no other relatives”. Id. § 1602. (These sections have since been

repealed and recodified, effective June 27, 1978, as 42 Pa. Cons.

Stat. Ann. § 8301 (Purdon).)

The Scottish statute provides that the personal representative

may sue only “in respect of patrimonial losses suffered by the

estate,” but that damages for wrongful death may be sought by the

spouse, parent, child, ascendants and descendants (other than

parents and children), brothers, sisters, nieces, nephews, uncles and

aunts (and their issue), any person accepted by the deceased as

a child of his family, and a divorced spouse of the deceased—with

the above relationships including relationships of the halfblood,

illegitimate children, and stepchildren. Damages (Scotland) Act

1976 §§ 1, 4, 10 (and Schedule 1); see A 18-19.

14

[A 18], which may be more generous to the relatives of

the decedent in terms of permissible damages than are

the laws of either Pennsylvania or Ohio.”

As for strict liability and negligence, it is far from

clear to us that characterizing them as distinct causes

of action is of great significance for purposes of de-

ciding a forum non conveniens motion.“ In any event,

21 The Damages (Scotland) Act 1976 allows members of the de-

ceased’s “immediate family” (defined as the deceased’s spouse,

parents, children, and persons accepted by the deceased as his

children) to recover damages for both loss of support and loss of

society [A 19], the latter comprising “compensation for the loss of

such non-patrimonial benefit as the relative might have been ex-

pected to derive from the deceased’s society and guidance if he had

not died”. Damages (Scotland) Act 1976, §1(4). See The Law

Commission and the Scottish Law Commission, Liability for De-

fective Products 6 (1975) (where death results, a dependent’s

claim under English law is for pecuniary loss only, “whereas under

Scots law there may also be a claim for non-pecuniary loss

(solatium)"). The latter class of damages, which often may be

more substantial than damages for loss of support, see Sea- Land

Services, Inc. v. Gaudet, 414 U.S. 578, 605-609 (1974) (POWELL,

J., dissenting), are explicitly prohibited by statute in Ohio, which

limits damages to those for “pecuniary injury”. Ohio Rev. Code

Ann. § 2125.02 (1976) (Page); see Keaton v. Ribbeck, 568 Ohio St.

2d 448, 891 N.E.2d 807 (1979); Rubeck v. Huffman, 54 Ohio St.

2d 20, 874 N.E.2d 411 (1978); Karr v. Sixt, 146 Ohio St. 2d 527,

67 N.E.2d 881 (1946); Kennedy v. Byers, 107 Ohio St. 90, 140

N.E. 680 (1928). In Pennsylvania the limitation of damages to

compensation for “pecuniary loss” has been imposed by the courts,

see Ferne v. Chadderton, 868 Pa. 191, 69 A.2d 104 (1949), which,

with the exception of one aberrational decision (Spangler v.

Helm's New York-Pittsburgh Motor Express, 396 Pa. 482, 153

A.2d 490 (1959)), have not allowed damages for loss of society.

See, e. g., Haddigan v. Harkins, 441 F.2d 844, 852 (3d Cir. 1970);

Soares v. McClosky, 466 F. Supp. 708, 708 (E.D. Pa. 1979); Prince

v. Adams, 229 Pa. Super. 150, 824 A.2d 3568 (1974).

2 After all, a ‘cause of action’ may mean one thing for one pur-

pose and something different for another.” United States v. Mem-

phis Cotton Oil Co., 288 U.S. 62, 67-68 (1988) (Cardozo, J.), quoted

in Davis v. Passman, 442 U.S. 228, 287 (1979).

15

there may be little practical difference between them,

in an action against a manufacturer involving allega-

tions of a manufacturing defect, as far as the outcome

of the case is concerned. The Scottish Law Commission,

which recently convened to consider changes in Scots

law on product liability, has suggested that “[i]t may

be that proof of a manufacturing defect is nowadays so

likely to lead to a finding that the manufacturer

failed to take reasonable care, that the duty on the man-

ufacturer is as near to being strict as makes no differ-

ence.“ **

In short, respondent’s claims of prejudice in prosecut-

ing these claims in Scotland are gossamer-thin. But

whether they are or not, a federal court deciding a

forum non conveniens motion is not obliged to parse the

intricacies of foreign law, comparing them in every par-

ticular with its own law. It is evident in this case that

the differences between local and Scots law in their sali-

ent respects fall far short of the differences that this

Court was willing to abide in Canada Ma g. They are

less consequential than the differences that have not con-

cerned the lower courts whose decisions countenancing

dismissals that would prejudice plaintiffs are cited in

our principal brief [Hz. Br. 33-34.“ There is no risk

28 The Law Commission and the Scottish Law Commission, supra

note 21, at 34-35. Dean Prosser expressed the same skepticism

about the practical differences between strict liability and negli-

gence, in actions against manufacturers as opposed to intermediate

sellers, when strict liability first began to gain acceptance in this

country. In a seminal article, he wrote: “Where the action is

against the manufacturer of the product, an honest estimate might

very well be that there is not one case in a hundred in which strict

liability would result in recovery where negligence does not.”

Prosser, The Assault Upon the Citadel (Strict Liability to the

Consumer), 69 Yale L.J. 1099, 1114 (1960); see id. 1116-17.

*% And Scots law on these issues seems to compare favorably

with what we know from the reported opinions about Norwegian law,

16

that the relatives of the decedents represented by re-

spondent will be deprived of a remedy or treated unfairly

in any way. Their claims will be adjudicated according

to the law of their own country, whose courts are avail-

able, adequate, and appropriate for this litigation.

CONCLUSION

For the foregoing reasons and those stated in our

principal brief, the judgment of the Court of Appeals

should be reversed, with directions to affirm the judg-

ment of the District Court dismissing this action on the

ground of forum non conveniens.

Respectfully submitted,

WARNER W. GARDNER *

NANCY J. BREGSTEIN

SHEA & GARDNER

1800 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 828-2000

RONALD C. Scott

ADRIAN J. GORDON

KRUSEN EVANS AND BYRNE

500 Public Ledger Building

Philadelphia, Pennsylvania 19106

(215) 928-4400

Attorneys for Petitioner,

Hartzell Propeller, inc.

* Counsel of record

KRUSEN EVANS AND BYRNE

SHEA & GARDNEI

Of Counsel

August 14, 1981

see Dahl v. United Technologies Corp., 632 F.2d 1027 (8d Cir.

1980), which respondent seems to think affords a remedy “almost

identical” to that afforded in the United States [Resp. Br. 81].