Defendent PACCAR’s Motion to Dismiss

Lisby v. Paccar, Inc.

Description: This case was a product liability case against Paccar, Inc. who makes Kenworth trucks.  Mr. Lisby was driving a Kenworth water truck on a construction site when it rolled over due to uneven terrain.  When the truck rolled onto its roof, the roof failed, crushing in on Mr. Lisby and causing his death.  The incident occurred in Texas, but Paccar is headquartered in Washington.  The case was filed in Washington and Paccar filed a motion to dismiss under the doctrine of Forum Non Conveniens arguing that Texas was a more appropriate forum since all the witnesses to the accident were in Texas.  The plaintiff responded arguing that Washington was the most appropriate forum since the central issue in the case was the design of the truck, and it was designed in Washington. This brief was filed by Heygood, Orr & Pearson on behalf of their client.

No.   05-09-00083-CV
SUPERIOR COURT OF WASHINGTON
IN AND FOR KING COUNTY
CASSIE LISBY individually, and as Personal Representative of THE ESTATE OF CLAYTON LISBY, and as legal guardian for her minor child J.L. ,Plaintiff.

v.

PACCAR, INC., and JANE AND JOHN DOES 1-50,

Defendants.

No. 11-2-29255-0 SEAPLAINTIFF’S OPPOSITION TO DEFENDANT PACCAR INC’S MOTION TO DISMISS BASED ON THE DOCTRINE OF FORUMNON CONVENIENS

 

INTRODUCTION

Defendant’s motion to dismiss should be denied because Defendant comes nowhere close to satisfying the exacting standard for forum non conveniens. This is a product liability case and Defendant is a Washington corporation that designed and tested the truck at issue in Washington.   Moreover, the chief engineer who oversaw the design of the truck – perhaps the most critical witness in the entire case -still resides here in Washington, and it is likely that other employees of Defendant (current and former) with knowledge of the truck’s design are located in Washington.  In claiming that this case should be transferred to Texas, Defendant bombards this Court with a list of 23 Texas “witnesses,” but even a cursory review of that list shows that it is greatly exaggerated and cumulative and that there is no chance Defendants will depose (let alone call live at trial) all of the witnesses that they identify.  The Washington Supreme Court denied a forum non conveniens motion in Johnson v. Spider Staging Corp., 87 Wn.2d 577 (1976) under circumstances similar to the present case, and this Court should do the same.

ARGUMENT

A.  A Plaintiff’s choice of forum is rarely disturbed and dismissal is a drastic remedy.

A plaintiff has the original choice to file his or her complaint in any court of competent jurisdiction. Sales v. Weyerhauser Co., 163 Wn.2d 14, 19, 177 P.3d 1122 (2008). Courts generally do not interfere with this choice where jurisdiction is properly asserted. Id. at 19.  However, the doctrine of forum non conveniens grants a court the discretionary power to decline a proper assertion of its jurisdiction when the convenience of the parties and the ends of justice would be better served if the action were brought and tried in another forum.  Johnson v. Spider Staging Corp., 87 Wn.2d 577, 579, 555 P.2d 997 (1976).

The trial court should begin with the principle that a plaintiff’s choice of forum is rarely disturbed. J.H. Baxter & Co. v. Central National Insurance Co. of Omaha, 105 Wn. App. 657, 661, 20 P.3d 967 (2001); see also 20 Am.Jur.2d, Courts, § 116 at 496 (2nd ed. 2005) (dismissal of action on forum non conveniens grounds is drastic remedy to be exercised with caution and restraint). This presumption enables lawsuits to get underway “without immediately floundering in argument about whether some other location would be preferable.” J.H. Baxter, 105 Wn. App. at 661.

Assuming an adequate alternate forum exists, a trial court must balance certain private and public factors in deciding whether to decline its own jurisdiction in favor of another forum. Sales, 163 Wn.2d at 20, 177 P.3d 1122.[1] As to the private factors, the court should consider the convenience of litigation in the alternative forum, including

the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; 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.

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1055 (1947).  The public factors also focus on litigation, including

[a]dministrative difficulties … for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty … imposed upon the people of a community which has no relation to the litigation…. There is a local interest in having localized controversies 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.

Gulf Oil Corp., 330 U.S. at 508-09.

Each case turns on its facts, with the trial court generally becoming entangled in the merits of the underlying dispute. Van Cauwenberghe v. Biard, 486 U.S. 517, 528 (1988); J.H. Baxter, 105 Wn. App. at 662, 20 P.3d 967. Unless the balance of the factors strongly favors the forum advocated by the defendant, the plaintiff’s choice of forum should prevail. Myers v. Boeing Co., 115 Wn.2d 123, 128-29, 794 P.2d 1272 (1990) (citing Gulf Oil Corp., 330 U.S. at 508)).

B.  The balancing of the factors does not strongly favor Texas.

The balancing of private and public factors “depend[s] upon the substance of the dispute.” Equity Residential v. Ace American Ins. Co., 155 Wn. App. 1009, 2010 WL 1030892, *4 (Wn. App. Div. 1, March 22, 2010) (citing Van Cauwenberghe, 486 U.S. at 528).  Thus, “the court must examine the substance of the dispute to evaluate what proof is required, and determine whether the pieces of evidence the parties cite are critical, or even relevant, to the cause of action and any potential defense.” Continuant, Inc. v. Buck Institute for Age Research, 148 Wn. App. 1008, 2009 WL 73947, *3 (Wn. App. Div. 2, January 13, 2009) (citing Van Cauwenberghe, 486 U.S. at 528 and Gulf Oil, 330 U.S. at 509).

  1. i. This is a Washington products case.

This is a defective design and “crash-worthiness” case.[2] Here, Plaintiff alleges “the truck suddenly and without warning rolled over and the cab of the truck collapsed causing the death of Mr. Lisby.” (See Plaintiff’s Amended Complaint for Wrongful Death and Products Liability, at ¶ 3.1 (emphasis supplied).) Plaintiff alleges “[t]he Kenworth truck being operated by Mr. Lisby at the time of his death was designed, manufactured, marketed, sold and placed into the stream of commerce by Defendants.”  (Id.)  Plaintiff further alleges that “[a]t the time this truck was designed, manufactured, and marketed, Defendants knew that this type of truck would be used in and around constructions sites, and would be used on uneven terrain” and “knew that this type of truck would be used as a tanker truck and be outfitted with a tank on the back of the chassis.“ (Id. at ¶ 3.2.)  Plaintiff alleges that Defendant placed the truck into the stream of commerce despite knowing it was “unfit for its intended use” because “the cab would collapse and kill or injure drivers of the truck in the event of a rollover.”  (Id.)  More specifically, Plaintiffs allege that Defendants failed to build the truck with a lower center of gravity; failed to utilize available technology and materials to strengthen the cab of the truck; failed to incorporate a roll over protection device in the cab of the truck; and/or failed to utilize stronger materials in the construction of the cab of the truck.  (Id. at ¶ 4.2.)  Plaintiff also alleges that Defendant failed to adequately warn or instruct the users of the truck of the dangers that they faced while operating the truck.  (Id. at ¶ 6.2.)  For example, Defendant “should have … [w]arned or instructed the users of the truck of the increased likelihood of a rollover when the truck was being used with a water tank on the back of the chassis” and “[w]arned or instructed the users of the truck that the cab was not strong enough by itself to protect them in the event of a rollover.” Id. Plaintiff additionally alleges that Defendants should have provided post-sale warning and instructions regarding the dangers in question.  (Id., at ¶ 7.2.)[3]

Under the trade name Kenworth Truck Company, Defendant manufactures and distributes commercial vehicles such as the one at issue in this matter. (Id. at ¶ 1.3.)  Defendant is a corporation with its principal place of business in Bellevue, Washington. (Id.; see also Defendant Paccar Inc.’s Answer to Amended Complaint, at p. 2 ¶ 3 (admitting its corporate headquarters is in Bellevue, Washington).)

Defendant has admitted that “the subject truck’s cab structure, including the doors, roof, roof rails, and rear wall were designed in the State of Washington.” (See Defendant PACCAR Inc.’s Responses to Plaintiff s Interrogatories, (attached hereto as Exhibit 1) at Response No. 3 (emphasis supplied).)  Many of Defendant’s employees, over many years, have relevant knowledge regarding the challenged design of the subject truck:

the subject truck’s cab was originally designed in the State of Washington in the 1980s by Kenworth Truck Company engineers and evolved over time. There is no single individual or individuals “who designed the subject truck. … When the truck was assembled in Ohio in 1990, the Chief Engineer at Kenworth Truck Company was Larry Orr, who is deceased. The current Chief Engineer at Kenworth Truck Company is Preston Freight, who resides in Duvall, Washington. Further responding, PACCAR will produce, pursuant to an appropriate confidentiality agreement with Plaintiff and her counsel, the design drawings for the subject truck’s cab components, which include the names of the individuals involved in the design of the components. If Plaintiff would like to know the city and state where a particular individual(s) appearing on a drawing resides, PACCAR will produce the information, provided that it is available.

Id., Ex. 1, at Response No. 4 (emphasis supplied).  Finally, it bears emphasizing that testing of the truck occurred in Washington.  (Id. Response No. 5.)

  1. ii. The Washington Supreme Court has rejected a motion to dismiss on forum non conveniens grounds under similar circumstances.

The present case is similar to Spider Staging and the result should be the same. 87 Wn.2d at 580.   In Spider Staging, a Kansas resident died in Kansas in a workplace incident on a construction site. A products liability lawsuit was filed in Washington against Washington corporations that designed the allegedly defective scaffolding the decedent was using at the time of the incident.  The Washington corporations moved to dismiss for forum non conveniens.  Although the trial court granted the motion to dismiss, the Washington Supreme Court reversed. The Supreme Court concluded that the factors did not “strongly favor” the Kansas forum so as to justify rejecting the Kansas plaintiff’s decision to sue in Washington:

[A]ll of the evidence which pertains to the manufacturing and marketing of the scaffold is in Washington State. Respondents are Washington corporations, and all of their principal officers reside in King County. Both of the engineers who designed the scaffold live in King County. The two principal witnesses from Kansas stated in affidavits that they willingly would appear in Washington. Also, appellant will bring the scaffold to Washington and give respondents an opportunity to examine it. The trial court therefore should not have disturbed [the plaintiff’s] choice of forum.

Spider Staging Corp., 87 Wn.2d at 580, 555 P.2d 997.

In the present case, “the evidence which pertains to the manufacturing and marketing of the [truck] is in Washington State.”  Defendant is a Washington corporation and its principal officers reside in Washington.  Although Defendant has managed to obtain virtually uniform, conclusory affidavits from several potential witnesses stating it would be a burden to travel to Washington to testify, none of the witnesses states that he or she would be unwilling to attempt to do so. More importantly, given the “substance of the dispute” in this crash-worthiness case, Defendant has hardly demonstrated that these witnesses could be described as the “principal” witnesses herein.  Defendant clearly knows how to reach these witnesses in Texas, and the witness could obviously be available for video deposition. Defendant has admitted that “the subject truck’s cab structure, including the doors, roof, roof rails, and rear wall were designed in the State of Washington.” (See Defendant’s Responses to Plaintiff’s Interrogatories, Exhibit 1, at Response No. 3.)   The witnesses and documents regarding the design of the truck and decisions regarding the warnings and instructions for the truck will be in Washington.  And, Defendant’s “current Chief Engineer at Kenworth Truck Company is Preston Freight, who resides in Duvall, Washington.” Id., at Response No 4.  Finally the subject truck can be transported to Washington for any purpose the Court deems necessary. In sum, as in Spider Staging, the Court should not disturb Plaintiff’s choice of forum.

  1. iii. Defendant’s motion to dismiss greatly exaggerates the number and relative importance of potential witnesses residing in Texas.

Defendant’s motion ignores that this products liability case centers on a product (the truck) designed and marketed in Washington. “When determining whether a particular venue is more convenient to witnesses courts do not limit their investigation to a review of which party can produce the longer witness list.” Aquatic Amusement Assocs., Ltd. v. Walt Disney World Co., 734 F.Supp. 54, 57 (N.D.N.Y.1990), citing 15 Wright, Miller & Cooper, Federal Practice and Procedure § 3851 at 425. “Rather, courts should look to the nature and quality of the witnesses testimony with respect to the issues in the case” Aquatic Amusement, 734 F.Supp. at 57, citing Vaughn v. American Basketball Assoc., 419 F.Supp. 1274, 1276–77 (D.C.N.Y.1976).

Plaintiff agrees some potential witnesses are located in Texas.  However, Defendant greatly exaggerates the import of most of these potential witnesses compared to the absolute necessity of the critical testimony from Defendant’s Washington-based employees involved in and/or deeply familiar with the truck’s design and original warnings as well as issues regarding post-sale monitoring and warnings related to the truck.  Moreover, it cannot seriously be suggested that Defendant intends to depose (let alone call live at trial) every single witness who in any way investigated or responded to the accident, as well as all of the decedent’s co-workers.  In short, this case centers more on the safety of a truck designed and marketed in Washington by Washington residents working for a Washington-headquartered corporation than it does as it does on a crash in Texas, particularly as it is not anticipated that facts of the accident will be in dispute.

Defendants concede that “a viewing of the accident scene [in Texas] by a Washington or a Texas jury would likely not be particularly informative.” (Motion to Dismiss at p. 23 (emphasis supplied).)  Although the subject truck is currently in Texas, the truck could obviously be transported to Washington for any purpose the Court deems necessary.  Significantly, Defendants completely ignore that their premises in Washington–where the truck was designed and tested–may also need to be viewed (by expert witnesses if not a jury).   Unlike the truck, Defendant’s Washington facilities cannot be transported to another state.

  1. iv. Public interest factors do not strongly favor Texas.

Defendant concedes that “there is no indication that the courts of this state are any more or less congested than the courts of Texas.”  (Motion to Dismiss, at p. 15.)  Thus, “court congestion” is not a factor.

Defendant argues that it wants to assign blame to entities that are not parties to this action. Of course, Washington law allows Defendant to attempt to prove that its responsibility should be reduced by any amount of fault ultimately attributed by the jury to other entities, even entities that are not named as parties.[4] Indeed, Defendant has already raised such defenses in this action.  (See Defendant’s Answer, at Affirmative Defenses Nos. 5-8 and 10.)

Perhaps most importantly, although Texas may have an interest in compensating those injured in Texas, Washington has a similar interest in regulating the safety of products designed and marketed in Washington by Washington corporations and in prescribing the conditions under which a Washington corporation may be subjected to liability for its products.  See Spider Staging, 87 Wn.2d at 583, 555 P.2d 997 (discussing Washington’s interests regarding the tortious conduct of Washington manufacturers); see also, gen., Washington product liability act, RCW 7.72.

When Washington’s tort reform act was enacted in 1981, the legislature announced its desire to balance two interests: protecting Washington industries from excessive litigation, and preserving the right of consumers to seek redress for injuries caused by unsafe products. The legislature enacted a 12–year statute of repose, which at the time was the nation’s longest for product liability, two years longer than that proposed by the Model Uniform Product Liability Act. The duration of the Washington statute of repose expresses a policy of deterrence of tortious conduct, and encourages manufacturers to make safe products for consumers

 

Zenaida-Garcia v. Recovery Systems Technology, Inc., 128 Wn. App. 256, 115 P.3d 1017 (2005) (footnotes omitted, emphasis supplied). In fact, Washington has an unquestionably “significant” relationship to the products liability claims raised herein.[5] Even accepting that Texas also has an interest in the subject matter herein, Defendant has certainly failed to show that public interest factors “strongly favor” the Defendant such that Plaintiff’s choice of forum can be disregarded and the case dismissed

To justify dismissal of this case, Defendants must establish more than merely that Texas is “more” convenient.  Rather, Defendant must demonstrate that the balance of relevant factors “strongly favors the defendant.” Myers., 115 Wn.2d at 128-29, 794 P.2d 1272 (emphasis supplied), quoting Gulf Oil Corp., 330 U.S. at 508); see also Spider Staging , 87 Wn.2d at 579, 555 P.2d 9 (“unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”) (emphasis supplied).  “Where a transfer would merely shift the inconvenience from one party to the other, the plaintiff’s choice of forum should not be disturbed.” Continuant, Inc, 148 Wn. App. at 1008, citing 20 Am.Jur.2d, § 120, at 501. Furthermore, as Spider Staging illustrates, a trial court should give considerable weight to the plaintiff’s choice of forum. Spider Staging, 87 Wn.2d at 579-580, 555 P.2d 9; see also Continuant, Inc.,  148 Wn. App. at 1008, citing SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, 382 F.3d 1097, 1103 (11th Cir .2004) (trial court abused its discretion in failing to consider strong presumption in favor of plaintiff’s choice of forum when weighing private interest factors). As set forth above, the relevant factors do not “strongly favor” the forum of Texas advocated by Defendant, and the motion to dismiss should be denied.

C.  If the Court is inclined to grant dismissal, it should be conditioned on Defendant actually litigating the merits of this case in Texas.

 

Courts regularly impose conditions when they dismiss on the basis of forum non conveniens, including conditions that a defendant submit to jurisdiction and waive limitations defenses.[6] If the Court is inclined to grant dismissal on the basis of forum non conveniens, it should be conditioned on Defendant consenting to jurisdiction, agreeing to litigate the case in Texas (waives any venue or service defenses), and waiving any limitations defenses, including any statute-of-repose defense.

In this case, there is a significant difference between Washington’s statute of repose (under which Plaintiff’s claims are not barred) and Texas’s statute of repose, (under which it appears possible that Plaintiff’s claims against PACCAR may be barred).[7]If Defendant’s true motivation for seeking transfer is simply to have the case promptly thrown out when it reaches Texas, then the Court should either deny Defendant’s motion or impose the conditions set forth above.[8]

CONCLUSION

For all of the reasons set forth above, Defendant’s motion should be denied.  Alternatively, Plaintiff requests that the Court condition any dismissal on Defendant’s submitting to jurisdiction in Texas, agreeing to litigate in Texas, and waiving any limitations defenses, including any statute-of-repose defenses.

 

 

DATED this 4th day of April 2012.

 

James Craig Orr, Jr.

Texas Bar No. 15313550

Heygood, Orr & Pearson

2331 W. Northwest Highway, 2nd Floor

Dallas, TX 75220

(214) 237-9001 Telephone

(214) 237-9002 Facsimile

Pro Hac Vice

 

 

Marty L. Matthews

Texas Bar No. 13226200

Law Office of Marty Matthews

5420 LBJ Freeway, Suite 300

Two Lincoln Centre

Dallas, Texas  75240

(972) 386-6740 Telephone

(972) 770-2156 Facsimile

Pro Hac Vice

 


[1] As discussed in the previous section, any such balancing analysis presumes the existence of an adequate alternative forum. See Sales, 163 Wn.2d at 20, 177 P.3d 1122.

[2] “Crashworthiness” refers to “the protection that a passenger motor vehicle affords its passengers against personal injury or death as a result of a motor vehicle accident.” Caiazzo v. Volkswagenwerk A. G., 647 F.2d 241, 243 n. 2 (2nd Cir. 1981). “[A]n action for enhanced injuries resulting from defective design of a product may be brought in Washington either under a negligence theory or under strict liability.” Bernal v. American Honda Motor Co., Inc., 87 Wn.2d 406, 411, 553 P.2d 107 (1976), citing, Baumgardner v. American Motors Corp., 83 Wn.2d 751, 522 P.2d 829 (1974); see also Baxter v. Ford Motor Co.., 168 Wn. 456, 12 P.2d 409 (Wn. 1932); Seattle-First Nat. Bank v. Tabert, 86 Wn.2d 145, 542 P.2d 774 (1975); Magana v. Hyundai Motor America,  123 Wn. App. 306, 94 P.3d 987 (2004).

[3] A post-sale duty to warn arises after a manufacturer has sufficient notice about a specific danger associated with the product. Esparza v. Skyreach Equip., Inc., 103 Wn. App. 916, 935, 15 P.3d 188 (2000), review denied, 144 Wn.2d 1004 (2001).

[4] See Mailloux v. State Farm Mut. Auto. Ins. Co., 76 Wn. App. 507, 512, 887 P.2d 449 (1995) (“If a party other than the plaintiff proves fault that is a proximate cause of the plaintiff’s damages, the person at fault is not liable to the plaintiff-the plaintiff has made no claim against him or her-but his or her fault nevertheless operates to reduce the ‘proportionate share’ of damages that the plaintiff can recover from those against whom the plaintiff has claimed.”); see, e.g. Anderson v. City of Seattle, 123 Wn.2d 847, 873 P.2d 489 (1994) (where non-party was found 99% responsible and defendant 1%, the defendant was only liable for 1% of the plaintiff’s damages).

[5] See Spider Staging, 87 Wn.2d at 580-84, 555 P.2d 997 (holding Washington had most significant relationship to products liability claims based on products designed in Washington which allegedly injured Kansas resident in Kansas); Zenaida-Garcia, 115 P.3d 1017 (holding Washington had most significant relationship to whether Washington’s 12-year or Oregon’s 8-year statute of repose applied to products liability action for injury to Oregon resident in Oregon allegedly caused by product designed in Washington); see also, gen., Singh v. Edwards Lifesciences Corp., 151 Wn. App. 137, 147-148, 210 P.3d 337, (2009) (California law applied to question of punitive damages against California-based product manufacturer for injury to Washington resident in Washington).

[6] See Sales, 163 Wn.2d at 22-23; Werner v. Werner, 526 P.2d 370, 371 (Wash. 1974) (court may condition dismissal on stipulations that defendants submit to jurisdiction in California and not plead a lapse in the statute of limitations); Wolf v. Boeing Co., 810 P.2d 943 (Wash. Ct. App. 1991) (the trial court has discretion to impose conditions in the order of dismissal for inconvenient forum); Boyer v. Robertson, No. 20044-2, 2002 Wash. App. LEXIS 259, at *5-6, *11 (Wash. Ct. App. Feb. 14, 2002) (concluding adequate alternative forum existed when defendants offered to waive any statute of limitations defense in the proposed alternative forum as part of their motion to dismiss); Weiland v. Gordon, No. 41443-7-I, 1999 Wn. App. LEXIS 178, at *2-3 (Wash. Ct. App. Feb. 1, 1999) (affirming trial court order that conditioned dismissal on submission to jurisdiction in alternative forum and waiver of statute of limitations defense); Contact Lumber Co. v. P.T. Moges Shipping Co., 918 F.2d 1446, 1450 (9th Cir. 1990) (holding the adequacy of the alternative forum is generally satisfied if the court makes dismissal conditional on the defendant’s agreement to submit to the jurisdiction of the alternative forum and waive any statute of limitations defenses); Loya v. Starwood Hotels & Resorts Worldwide, Inc., 583 F.3d 656, 664-667 (9th Cir. 2009) (adequate alternative forum when defendants accepted process, submitted to jurisdiction, and waived limitations defenses). Crystal Co. v. Inchape Shipping Servs., No. 98-167983, 1999 U.S. App. LEXIS 34131, at *3 (9th Cir. Dec. 22, 2009) (ruling that possibility that statute of limitations would bar claims in proposed alternative forum could be cured with a waiver of limitations defense); Villar v. Crowley Maritime Corp., 782 F.2d 1478, 1481-82 (9th Cir. 1986) (adequate forum when dismissal conditioned on waiver of venue, jurisdiction, and limitations defenses).

 

[7]Washington’s statute of repose in a products liability case such as this is generally based on the useful life of the product, Wash Code § 7.72.060(1), whereas Texas generally has 15-year limitation with a few minor exceptions, none of which are likely present here, Tex. Civ. Prac. & Rem. Code § 16.012(b).  Washington has a rebuttable presumption that if a harm occurs more than 12 years after the time of delivery, then the harm occurred after the product’s useful life, but that presumption can be overcome by a preponderance of the evidence.  Wash Code § 7.72.060(2).  From what little and incomplete discovery has been conducted to date, it appears that the truck at issue was manufactured in 1990, and thus was likely sold some time shortly thereafter.  (Defendant PACCAR Inc.’s Responses to Plaintiff’s Interrogatories No. 4.)  Under Texas’s statute of repose, Plaintiff’s claims would likely be barred, whereas Washington’s statute of propose would allow Plaintiff to establish that incident in question occurred during the product’s useful life.

 

[8] If transfer to Texas would result in Plaintiff’s claims being barred, then Texas is not an alternative forum for forum non conveniens purposes, and Defendant’s motion must be denied.    See Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1235 (9th Cir. 2011) (“The danger that the statute of limitations might serve to bar an action is one of the primary reasons for the limitation on the court’s discretion with respect to the application of the doctrine of forum non conveniens.”) (internal quotation marks and citation omitted); see also In re Air Crash Disaster Near Bombay, India on January 1, 1978, 531 F. Supp. 2d 1175, 1181-82 (W.D. Wash 1982) (concluding no alternative forum existed when claims would be barred by statute of limitations in proposed alternative forum); Chang v. Baxter Healthcare Corp., 599 F.3d 728, 736 (7th Cir. 2010) (“[I]f the plaintiff’s suit would be time-barred in the alternative forum, his remedy there is inadequate . . . and in such a case dismissal on grounds of forum non conveniens should be denied unless the defendant agrees to waive the statute of limitations in that forum . . . .”); Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster NV, 569 F.3d 189, 202 (4th Cir. 2009) (“[I]f the statute of limitations has expired in the alternative forum, the forum is not available, and the motion to dismiss based on forum non conveniens would not be appropriate.”); Bank of Credit and Commerce Int’l (Overseas) Ltd. v. State Bank of Pakistan, 273 F.3d 241, 246 (2d Cir. 2001) (“[A]n adequate forum does not exist if a statute of limitations bars the bringing of the case in that forum.”).