# Petitioners Reply Brief — Piper Aircraft Co. v. Reyno

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1910%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Reply Brief
- **Published:** January 1, 1982
- **Citation:** 454 U.S. 235

## Text

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].

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1910%3A06. Public record. Not legal advice.