Court Bristles at Ostrich-Like Trial Tactic


     CHICAGO (CN) – In an unusual opinion that included pictures of a businessman and an ostrich with their heads buried in the ground, the 7th Circuit chastised two lawyers who failed to mention relevant circuit precedent in their briefs.
     The court’s opinion addressed two multidistrict class actions transferred to foreign courts at the request of the defendant corporations on the doctrine of forum non conveniens.
     Monica del Carmen Gonzalez-Servin, et al v Ford Motor Company belongs to a series of cases arising out of car accidents allegedly caused by defects in tires installed on Ford vehicles in Latin America.
     The 7th Circuit notes that U.S. District Judge Sarah Evans Barker in Indianapolis booted a case after “deciding that the Mexican courts would be a more appropriate forum for the adjudication of [a] lawsuit by Mexican citizens arising from the death of another Mexican in an accident in Mexico.”
     U.S. District Judge John Grady in Chicago likewise determined that Israel was a more suitable venue for Yehuda Kerman, et al v Bayer Corporation, et al, which involves HIV-contaminated blood products consumed by Israeli hemophiliacs.
     Seeking to keep their cases on U.S. soil, the plaintiffs appealed to the 7th Circuit. But both failed to adequately acknowledge Abad v Bayer Corp., a precedential ruling the court issued in 2009 that affirmed Judge Barker’s decision to transfer a similar product liability class action to Argentina.
     Plaintiffs suing Ford case simply ignored Abad, despite repeated references to the case by the automaker, which accurately contended that the case was “nearly identical” to their case. Abad also received little attention from the Israeli hemophiliacs suing Bayer.
     The maneuver did not go unnoticed by the federal appeals court. “When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don’t know the thinking that led the appellants’ counsel in these two cases to do that,” Judge Richard Posner wrote.
     “There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.”
     In a humorous addition, characteristic of Judge Posner, the opinion concludes with two images. A picture of an ostrich with its head buried in the sand immediately precedes a suit-clad mad doing the same.
     “The ostrich is a noble animal, but not a proper model for an appellate advocate,” Posner wrote. “The ‘ostrich-like’ tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.”

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