Respondent’s Answer to Motion for Discretionary Review

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 by Heygood, Orr & Pearson on behalf of the family of Mr. Lisby. 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. The Court ruled that it would grant Paccar’s motion, but only if Paccar stipulated that the Washington Statute of Repose would apply when the case proceeds in Texas. Paccar applied for a discretionary interlocutory appeal. This was the brief submitted by Heygood, Orr & Pearson in response to Paccar’s request for appellate review.

 NO. 69008-6
CASSIE LISBY, individually, and as Personal Representative of THE ESTATE OF CLAYTON LISBY, and as legal guardian for her minor child J.L.,Plaintiff/Respondent,





Respondent’s Answer to Motion for Discretionary Review

The Court should deny Petitioner’s motion for discretionary review because Petitioner comes nowhere close to establishing that the trial court’s forum non conveniens ruling satisfies the exacting standard for discretionary review. The trial court’s ruling is not the type of ruling that is the proper subject of interlocutory review because the trial court was well within its discretion to require that Petitioner stipulate to the application of Washington’s statute of limitation and repose as a condition of dismissal. Petitioner’s claim that this condition constitutes some sort of usurpation of a Texas court’s authority is misplaced, as Washington courts routinely apply conditions similar to (and even more restrictive than) than the one at issue here. Moreover, even if Petitioner could establish some sort of “error” on the part of the trial court, Petitioner wholly fails to explain how the error renders “further proceedings useless,” Wash. RAP 2.3(b)(1), or “substantially limits the freedom of a party to act,” Wash RAP 2.3(b)(2). For these and the following reasons, Petitioner’s motion should be denied.

I. Petitioner bears a heavy burden of showing that interlocutory review is warranted, particularly, when as here, Petitioner seeks review of a discretionary ruling of the trial court.

Washington courts have held that interlocutory review is available only in “rare instances,” id. and “should be limited to extraordinary cases to avoid protracted and expensive litigation and not as a vehicle to obtain expedited review of a difficult case,” Morehouse v. Washington, No. 23583-1-III, 2006 Wash. App. LEXIS 268, at *2 (Feb. 28, 2006) (rejecting discretionary review even when the parties agreed and the court certified that the relevant order involved a controlling question of law to which there is a substantial ground for a difference of opinion). Id. Washington courts have explained why interlocutory appellate review is disfavored:

Piecemeal appeals of interlocutory orders must be avoided in the interests of speedy and economical disposition of judicial business. Pretrial review of rulings confuses the functions of trial and appellate courts. A trial court finds facts and applies rules and statutes to the issues that arise in the course of a trial. An appellate court reviews those rulings for legal error and considers the harm of the alleged error in the context of its impact on the entire trial. An appellate court is not competent to review most evidentiary rulings when a trial has not yet occurred both because it does not find its own facts and because it is incapable of assessing the impact of the evidence on the whole case.

Minehart v. Morning Start Boys Ranch, Inc., 156 Wn. App. 457, 463 (2010) (internal quotation marks and citation omitted). The result is that the party moving for interlocutory review bears a “heavy burden.” In re Grove, 127 Wn. 2d 221, 235 (1995).

Interlocutory review is particularly inappropriate when the ruling involves a discretionary order of the trial court. See, e.g., Diaz v. Washington State Migrant Council, 165 Wn. App. 59, 72 n.5 (2011) (rejecting discretionary review of trial court’s rulings concerning an adverse inference instruction, imposing terms with notice and hearing, and refusing to entertain a motion for summary judgment on the issue of overriding justification because “none meets the standard for discretionary review”); Brunridge v. Fluor Fed. Services, Inc., No. 22058-3, 2004 Wash App. LEXIS 768, at *1 (April 27, 2004) (rejecting that it was appropriate to review trial court’s exclusion of certain evidence pursuant to motions in limine because even if there was error the rulings “neither render further proceedings useless nor substantially alter the status quo or so limit the freedom of a party to act as to call for interlocutory review.”); Cf. Hartley v. Washington, 103 Wn. 2d 768, 773 (1985) (concluding discretionary review was warranted because “[i]n this instance, however, we are interpreting a new statute with wide implications for governmental liability.”). As discussed below, the order at issue here is just such a discretionary order.

II. Petitioner comes nowhere closing to satisfying the requirements of Wash. 2.3(b)(1) or 2.3(b)(2).

Reflecting Washington’s longstanding policy against piecemeal appeals, Wash. RAP 2.3(b) establishes strict and limited circumstances under which interlocutory review may be granted. For purposes of this response, the two relevant provisions are as follows:

(1) The superior court has committed an obvious error which would render further proceedings useless. Wash. RAP 2.3(b)(1)

(2) The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act. Wash. RAP 2.3(b)(2).

Petitioner fails to show it is entitled to relief under either provision.

A. Petitioner cannot show that discretionary review is warranted under Wash. R.A.P. 2.3(b)(1).

Petitioners fail to direct this Court to any Washington decision in which an appellate court has granted interlocutory review of a trial court’s forum non conveniens dismissal order, let alone a decision in which the court granted interlocutory review of the conditions imposed on such a dismissal order. This is likely because, as discussed below, trial courts have wide discretion to impose conditions to ensure that a dismissed case actually proceeds in the alternative forum.

i. Petitioner cannot show error on the part of the trial court, let alone “obvious error.”

a. A trial court has discretion to impose conditions on a dismissal for forum non conveniens.

A trial court’s determination of whether to dismiss on the basis of forum non conveniens “necessarily requires the court to consider whether the case will proceed in the alternative forum.” Sales v. Weyerhaeuser Co., 163 Wn.2d 14, 21 (2008). As a result, trial courts have the authority to impose conditions on a dismissal for forum non conveniens. See Int’l Sales & Lease, Inc. v. Seven Bar Flying Serv., Inc., 12 Wn. App. 894, 899 (1975) (recognizing that forum non conveniens “permit[s] a court which has assumed jurisdiction to attach conditions to the removal of the cause to a more convenient forum”).

The efficacy of forum non conveniens depends on the court’s power to subject dismissal on the fact that the parties will litigate in the alternative forum. The stipulation requirement gives meaning to the court’s determination that a specific forum offers a better location for the litigation of the case.

Sales, 163 Wn.2d at 21. To that end, “conditions imposed by the order of dismissal are within the sound discretion of the trial court.” Wolf v. Boeing Co., 61 Wn. App. 316, 329 (1991) (emphasis added).

b. Petitioner’s motion is fundamentally flawed because it focuses solely on a trial court’s authority to make choice of law determinations in a forum non conveniens context when the trial court in this case did no so such thing.

Petitioner devotes an extensive amount of its motion to discussing Washington authority that recognizes that as a matter of practice choice of law determinations are often left to the new forum. (Motion at 14-17.) As a preliminary matter, there is nothing in those authorities that suggests a trial court is prohibited from ever considering a choice of law question or its impact on the litigation, and there is certainly nothing to suggest that a trial court is flatly precluded from imposing as a condition of dismissal that a defendant waive the statute of repose. See, e.g., Johnson v. Spider Staging Corp, 87 Wash. 2d 577, 579 (1976) (court “need not reach the choice of law issue”); Myers, 115 Wash. at 1278-79 (holding merely that choice of analysis was separate from balance of forum non conveniens factors); Weiland v. Gordon, No. 41443-7-I, 1999 Wash. App. LEXIS 178, at *9 (Feb. 1, 1999) (holding only that “forum non conveniens and choice of law analysis are separate inquires”); Hill, 96 Wash. App. At (holding choice of law analysis was “not a necessary element” of the forum non conveniens doctrine).

But more fundamentally, Petitioner’s entire focus is misplaced because the trial court in this case did not make a choice of law determination, that is, the trial court did not rule affirmatively for all purposes which state’s statute of repose applies. The trial court merely imposed as a condition of dismissal that Petitioner stipulate that Washington’s statute of repose applies if this case proceeds in Texas so as to ensure the case is actually litigated there. If Petitioner chooses to remain in Washington, then Petitioner is free to argue the issue of which state’s statute of repose applies. To the extent there is some sort of choice of law aspect to the trial court’s decision, it should be emphasized that even the authorities to which Petitioners direct the Court recognize that choice of law has some relevance in a forum non conveniens analysis as a “choice of law question informs, but does not govern a trial court’s forum non conveniens dismissal.” Hill v. Jawanda Transport, 96 Wash. App. 537, 546 (1999).

c. Petitioner’s restrictive view of the types of conditions that a trial court may impose is unsupported by Washington law.

Petitioner erroneously suggests that a trial court is subject to stringent limitations on the types of conditions it may impose on a forum non conveniens dismissal order. To that end, Petitioner claims that trial court’s order “veered sharply from established precedent” because it conditioned “the forum non conveniens dismissal on resolution of an important choice of law question which could significantly impact the litigation.” (Motion at 8.) Petitioner elaborates that a trial court “should not attempt to make decisions that will bind the court in the new forum.” (Id. at 18.) Petitioner is wrong.

There is nothing in Washington law that limits the authority of a trial court to impose conditions in such a manner, and the reality is that trial courts routinely impose conditions that “impact the litigation” and “bind the court in a new forum.” (Id. at 8, 18.) Examples of such conditions include the condition that a defendant admit liability, pay fees, agree to pay any judgment, and not remove a case. See, e.g., Myers v. Boeing Co., 115 Wn2d 123, 127 (1990) (“Conditions of the dismissal were that Boeing submit to jurisdiction in Japan, waive any statute of limitations defense, admit liability for compensatory damages, and not oppose recognition in Japan of the judgment in liability entered on July 24, 1987); Sales, 163 Wn.2d at 22 (trial court had discretion to condition dismissal on defendant’s stipulation not to remove the action to federal court once the action was re-filed); Boyer v. Darcy, No. 20044-2-III, 2002 Wash. App. LEXIS 259, at *6-12 (Feb. 14, 2002) (affirming forum non conveniens dismissal order that imposed the conditions that defendants “(1) submit to the jurisdiction of a British Columbia court; (2) waive their statute of limitations defense; and (3) admit liability for the accident.”); Klotz v. Dehkhoda, 134 Wn. App. 261, 264 (2006) (forum non conveniens dismissal order conditioned on “the defendant admit[ting] liability and that a British Columbia court accept[ing] jurisdiction”); Int’l Sales & Lease, Inc. v. Seven Bar Flying Svc., Inc., 12 Wn. App. 894, 899 (1975) (forum nonconveniens dismissal condition on the following: defendant “pays plaintiff, International Sales, $ 1,264.06 on account; (2) pays plaintiff reasonable attorney’s fees expended to date in this court and in the superior court, said fees to be fixed by the trial court; (3) pays said $ 1,264.06 and fees as fixed within 60 days after the filing of the formal order; and (4) agrees to reimburse the plaintiff for reasonable attorney’s fees and costs in New Mexico, should the latter recover more than $ 1,264.06 in this suit.”); see also Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1234-35 (9th Cir. 2011) (district court erred because it did not even consider conditioning forum non conveniens dismissal conditioned on Defendant’s (1) agreement to satisfy any judgment rendered in Peruvian court; (2) waiver of statute of limitations defense; and (3) agreement to comply with United States discovery rules); FIL Leveraged US Government Bond Fund Limted v. Mansfield, No. 97-56414, 1998 U.S. App. LEXIS 17586, at *8 (9th Cir. July 29, 1998) (affirming the “myriad of conditions” imposed by the district court in a forum nonconveniens dismissal order). These cases demonstrate that Washington courts have wide discretion to impose conditions that ensure that a case actually proceeds in the alternative forum.

In this case, the trial court imposed the condition that Petitioner waive the statute of limitations and statue of repose. This condition is far less restrictive than many of the conditions that Washington’s courts have applied in the past (such as a condition that a defendant stipulate to liability) and was done to ensure that that the case actually proceeds in Texas, as opposed to Petitioner seeking to have the case promptly thrown out on repose grounds when it reaches Texas. Because the trial court was well within its authority to impose the condition, there was no error, let alone “obvious error,” and Petitioner has failed to establish that discretionary review is appropriate.

ii. The trial court’s ruling does not render further proceedings “useless.”

Even if Petitioner were somehow able to show that the trial court’s order amounted to “obvious error,” Petitioner still needs to establish that the error renders future proceedings “useless,” a topic of little discussion in Petitioner’s motion. See Wash RAP 2.3(b)(1). Petitioner bears a heavy burden in showing that future proceedings would be rendered “useless;” essentially it is required to show that the trial court’s error goes to the heart of the case such that reversal would prevent a useless lawsuit from proceeding. See, e.g., Pinchin v. Nick-N-Willy’s Franchise Pizza Co., No. 63417-8-I, 2009 Wash. LEXIS. 1069, at *10 (Wash. July 22, 2009) (rejecting that partial summary judgment ruling rendered future proceedings useless because even if the decision was reversed “other issues (including potential antifraud claims) may remain to be litigated”); Hartley, 103 Wn. 2d at 773 (“The questions of law raised as to the interpretation of the HTOA are appropriate for review. A useless lawsuit would be prevented by a decision in favor of dismissing the State and County as defendants.”); Pekisheva v. Moser, No. 64832-2-1I, 2011Wash. App. LEXIS 2150, at *7 (Sept. 19, 2011) (trial court’s award of judgment against one of multiple defendants did not render future proceedings useless); Dussault v. Seattle Public Schools¸69 Wn. App. 728, 732 n.1 (1993) (trial court’s denial of a summary judgment did not render future proceedings useless). In this case, the trial courts’ imposition of conditions comes nowhere close to rendering further proceedings “useless.” This is a forum non conveniens order that addresses only the issue of where the lawsuit will proceed. Reversal of the trial court’s order will in no way end this litigation or prevent a “useless” lawsuit from proceeding.

Moreover, it bears emphasizing that Petitioner can refuse to accept the condition and litigate the case in Washington, in which case it will have the opportunity to re-urge which state’s statute of repose should apply in this case. While the trial court may have concluded that on balance the private and public interest factors weighed in favor of this case proceeding in Texas, there is nothing in the trial court’s ruling or the proceedings below that suggest that it is impossible for this case to proceed in Washington or that any such proceedings would be “useless.” Alternatively, Petitioner can accept the condition and litigate the merits of the case, including the as-yet unresolved question of whether Respondent’s claims are barred under Washington’s statute of repose. Regardless, this case will proceed in the ordinary course of litigation, and the trial court’s ruling does not render future proceedings “useless.”

Petitioner appears to suggest that the trial court’s ruling rendered further proceedings “useless” because a ruling before this Court in Petitioner’s favor “will be dispositive with respect to this litigation in Washington.” (Motion at 10 (emphasis added)) There is nothing, however, in either the plain language of Wash RAP 2.3(b)(1) or Washington case law, that suggests Wash. RAP 2.3(b)(1) is concerned only with the termination of further proceedings in Washington, as opposed to the termination of the litigation as a whole. Even if the trial court’s decision is reversed, this case will proceed in Texas and Petitioner’s suggestion that this Court should focus only on the termination of the litigation in this state is unwarranted.

B. Petitioner cannot show that discretionary review is warranted under Wash. R.A.P. 2.3(b)(1).

As set forth above, to satisfy the requirements of Wash. R.A.P. 2.3(b)(2), Petitioner must show (1) “probable error” on the part of the trial court; and (2) the error “substantially limits the freedom” of Petitioner to act. Petitioner can satisfy neither requirement. First, as set forth above in Part II.A.i, there was no error (let alone “probable error”) with the trial court’s ruling. Second, even assuming there was some error, the trial court’s ruling does not substantially limit any freedom of Petitioner to act.

In order for a trial court’s ruling to substantially limit the freedom of a party to act, Washington courts have generally required that the ruling limit the party’s ability to act outside of the underlying proceeding. See Ravsten v. Dept. Of Labor and Industries, 72 Wn. App. 124, 129 (1993) (interlocutory order substantially limited the freedom of an administrative agency to act on other similar cases during the pendency the case); Somal v. Allstate Prop. & Case Ins., No. 64626-5-I, 2012 Wash. App. LEXIS 41, at *7 (Jan. 17, 2012) (discretionary review granted under Wash. RAP 2.3(b)(2) because the trial court’s ruling “improperly precluded Allstate from recovering payments made on behalf of partially at-fault insureds”); Washington v. Lee, 158 Wn. App. 513, 516 (2010) (discretionary review under Wash. RAP 2.3(b)(2) granted because trial court’s ruling involved “probable error implicating Lee’s constitutional freedoms.”) Washington v. Snektov, No. 63332-5-I, 2010 Wash. App. LEXIS 1513, at *3 (July 19, 2010) (same); Washington v. Swain, 93 Wn. App. 1, 8 (1998) (trial court’s incompetency ruling substantially limited defendants’ “ability to act by delaying his arraignment and trial”); cf. Pinchin v. Nick-N-Willy’s Franchise Pizza Co., No. 63417-8-I, 2009 Wash. LEXIS. 1069, at *10 (Wash. July 22, 2009) (granting a partial summary judgment does not substantially limit the freedom of a party to act as required for discretionary review under RAP 2.3(b)(2). Courts have tended to restrict Wash. RAP 2.3(b)(2) in this manner because the rule was intended to narrowly apply “‘primarily to orders pertaining to injunctions, attachments, receivers, and arbitration….’” Pinchin v. Nick-N-Willy’s Franchise Pizza Co., No. 63417-8-I, 2009 Wash. LEXIS. 1069, at *10 (Wash. July 22, 2009) (quoting Taskforce Comment Wash. RAP 2.3)).

Petitioner appears to argue that the “freedom” that the trial court is restricting is “Petitioner’s right to relief under the forum non conveniens doctrine.” (Motion at 8.) But this “freedom” has nothing to with Petitioner’s conduct outside of this litigation such that the trial court’s order has deprived Petitioner of the freedom “to act.” Wash. RAP 2.3(b)(2). Moreover, Petitioner does not have a “right” or “freedom” to forum non conveniens relief; the doctrine of forum non conveniens is simply an exercise of a trial court’s discretionary authority to decline jurisdiction, and no Washington court has ever held that it creates a “right” or “freedom” in a party. See Myers, 115 Wn2d at 128. Petitioner’s argument at bottom appears to be that it has a “right” or “freedom” to obtain (in Petitioner’s opinion) correct legal rulings. This is simply not a valid ground for discretionary review under Wash. RAP 2.3(b)(2).


For all of the reasons set forth above, Petitioner has failed to carry its burden of showing that discretionary review is warranted under Wash. RAP 2.3(b)(1) or 2.3(b)(2). As a result, the Court should deny Petitioner’s request for discretionary review.

Dated: July 30, 2012

Respectfully submitted,



James Craig Orr, Jr. (Admitted Pro Hac Vice)

Heygood, Orr & Pearson

2331 W. Northwest Highway, 2nd Floor

Dallas, TX 75220

(214) 237-9001

Attorneys for Plaintiff/Respondent