Preview
LISETTE RAMIREZ IN THE DISTRICT COURT
Individually and as Next Friend to
CYNTHIA GARCIA RAMIREZ and
JESUS GARCIA RAMIREZ, minors,
as the Wrongful Death Beneficiaries of
ALONSO GARCIA, Deceased,
PATRICIA RAMIREZ DE GARCIA,
Deceased, and JOHANNA ARACELI
GARCIA RAMIREZ, Deceased
JORGE ROSAS GARCIA
on Behalf of all the Wrongful Death
Beneficiaries of MARGARITA
GARCIA SANCHEZ, Deceased,
LUIS ALBERTO NAVARRO GARCIA §
on Behalf of all the Wrongful Death §
Beneficiaries of MARIA LUISA GARCIA§
SANCHEZ, Deceased, §
§ HARRIS COUNTY, TEXAS
VICTOR RAMIREZ LOPEZ §
on Behalf of all the Wrongful Death §
Beneficiaries of CIRILA LOPEZ §
GARCIA Deceased, §
Plaintiffs §
JOSE RAMIREZ ALONSO,
JORGE RAMIREZ LOPEZ,
LUCIA RAMIREZ LOPEZ, CRISTINA
ALVAREZ, JORGE ROSAS
GONZALEZ, DEOLINDA ROSAS
GARCIA, MOISES DE JESUS ROSAS
GARCIA, DIOVENI MARGARITA
ROSAS GARCIA, ALFREDO
NAVARRO, ALFREDO NAVARRO
GARCIA, MARICELA NAVARRO
GARCIA and GABRIELA NAVARRO
GARCIA
Intervenors
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd
VS.
COOPER TIRE & RUBBER CO. §
Defendant § 157th JUDICIAL DISTRICT
PLAINTIFFS’ AND INTERVENORS’ RESPONSE TO COOPER TIRE’S MOTION TO
RECONSIDER COURT’S MAY 29, 2012 RULINGS ON CHOICE OF LAW ISSUES
TO THE HONORABLE JUDGE OF SAID COURT:
PLAINTIFFS’ AND INTERVENORS
Cooper Tire & Rubber Company’s Motion to Reconsider the Court’s May 29, 2012 rulings on
Choice of Law Issues and in support of same would show:
I COOPER’S MOTION TO RECONSIDER PRESENTS NO
CHANGE IN TEXAS LAW TO MERIT A RECONSIDERATION
In its current challenge to this court’s orders denying Cooper’s Motion to Apply the Law
of Mexico and granting Plaintiffs’ Motion to Apply the Law of California, Cooper offers no new
case law which overrules or distinguishes the holding in Ford Motor Co. v. Anguinia, 9 S.W.3d
252, 262(Tex. App.—San Antonio 1999, pet. denied)
The court will recall that at the original hearing, Cooper’s only retort to the application of
was an ad hoc attempt to disparage the motives of Justices of the 4 Court of Appeals
who rendered it. Specifically, Cooper argued that the Justices had issued what was described as a
“results oriented” decision with no proper merit. Somewhat incredulously, the court noted that
one of the authors of the opinion now sits on the Texas Supreme Court. Cooper’s motion to
reconsider is no less insulting in that it now questions the wisdom of this court’s application of
to the facts of the present case without any support in the law for this claim.
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd
The court will recall that and the present case share several key factual
similarities. Both cases center on allegations that defects in an automotive product, designed,
manufactured, marketed, sold and serviced in the United States by United States companies, and
used by U.S. consumers, caused an accident during a vacation to Mexico. In both cases, citizens
of both the United States and Mexico were killed. Neither case involved a named defendant who
was a citizens of Mexico.
In applying to the facts in this case, the trial court correctly found that the place
of the accident, having occurred while the vehicle owners were on vacation in Mexico, had been
merely fortuitous and not the lynchpin to Mexico Cooper still claims. The court’s decision was
further supported by the fact that, as in , there was no Mexican defendant to invoke
Mexico’s interest in limiting damages exposure of domestic defendants that are sued in tort.
Therefore, this conflict with Mexico was a false one.
In its motion, Cooper presents the same old argument that the court should bring back
doctrine which predated Texas’ adoption of the Restatement Second on Conflicts.
Cooper presented no authority then and none now which controverts and/or reinstates
Il COOPER PRESENTS NO NEW EVIDENCE THAT MERITS A
RECONSIDERATION BY THE COURT OF ITS RULINGS
Affidavit of Joe Grant
Cooper’s provides the court with an affidavit of its tire expert Joseph Grant. This
affidavit is an attempt to connect the failure of the tire to a “phantom” impact that Grant alleges
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd
occurred while the vehicle was in Mexico. Grants’s affidavit lacks any credibility on the facts
presented in this case. In particular, the surviving accident victims, Cynthia and Jesus Ramirez,
have unequivocally testified that they traveled in the subject vehicle during the 1500 plus mile
journey which took them from their hometown of Yuba, California to Jalisco, Mexico where the
accident occurred. They attested to the fact that the vehicle never experienced any type of impact
with a road hazard or any other service issues during the entirety of the journey. These
depositions are attached herein as Exhibits 1 & 2 Cynthia and Jesus also testified that the
vehicle was run under normal conditions and without incident until the subject tire suddenly
Plaintiffs have presented substantial evidence that the failure of this tire was the result of
errors in design and manufacturer that occurred wholly in the United States and many years
before this vehicle traveled into Mexico. If the tire was unable to operate without failure under
the conditions described by Jesus and Cynthia, then it shows a lack of robustness in the design is
the result of numerous manufacturing documented by Plaintiffs’ tire expert. See Report of
Troy Cottles, Exhibit 3
B Affidavit of Richard Tonda
Cooper provides the affidavit of accident reconstruction expert Richard Tonda in an effort
to try and connect the loss of vehicle control to driver error. Plaintiffs have presented expert
evidence to show that the driver’s response was what your expect an average persons to be in the
face ofa sudden catastrophic failure. See report of Steve Arndt, Exhibit 4. Moreover, there is
no eyewitness or other testimony which supports any claim that the drivers’ response was erratic
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd
or abnormal under the emergency circumstances of the tire failure.
Lastly, and most significant to the conflicts of law issues, the driver is not and never has
been a litigant in this case. His personal or financial interest will be affected by the outcome of
this lawsuit regardless of whether Cooper designates him as a responsible third party. Therefore,
Mexico’s interest in having its law applied to the driver’s conduct is not invoked by this case.
Tonda’s affidavit is nothing more than Cooper use of “paid for” evidence to manufacture what is
defined by as a “false conflict”.
Til. CALIFORNIA LAW NOT APPLICABLE TO TRIAL COURT’S DECISION ON
CHOICE OF LAW ISSUES
Cooper now wants to argue that if California law applies to the liability and damages
issues in this case, then California’s choice of law rules should apply to a reconsideration of the
choice of law question. This reasoning is not only circular, it violates the very first rule found in
Section 6 of the Restatement Second of Conflicts which says:
A court, subject to constitutional restrictions, will follow a statutory directive of its own
Gutierrez v Collins, 583 S.W.2d 312, 318 (Tex. 1979
By this rule, the trial court’s analysis should be guided by the directives of Texas law on
deciding choice of law questions. Cooper’s assertion that the trial court, having found California
law applicable to this case, should revisit the choice of law question pursuant to California law
is contrary to the rule expressed in the Restatement and adopted by the Texas Supreme Court in
. Cooper presents no law or evidence that applies the rule #1 of Section 6 the way it
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd
IV. CALIFORNIA LAW CONSISTENT WITH AGUINIGA V FORD
, that the court should now be guided by California law for re-
deciding the choice of law questions in this case, Plaintiffs would show that Cooper mis-states
California’s rules on choice of law by “mixing the apples with the oranges” when it attempts to
fit a forum non conveniens analysis into a choice of law question. All the cases and orders from
California it cites are forum non conveniens decisions. The Restatement says nothing about
using FNC rules to decide choice of law issues.
Plaintiffs would show that the same “false conflict” analysis guiding the
decision, was applied by the California Supreme Court when it decided
Court, 11 Cal. 3d. 574 (Cal. 1974). Hurtado was an action for wrongful death
arising from an accident that occurred in California. The decedent was a resident of Mexico
visiting his brother in California at the time of the accident. All the defendants were from
The defendants moved to have Mexican damages law apply to the claims of the decedent.
These defendants made the same argument that Cooper is now making that Mexican residents
should have their damages assessed by the law of where they live regardless of who caused the
harm or where it originated. On mandamus, the California Supreme court held that the fact that
two different states are involved does not itself indicate that there is a “conflict of laws” or a
“choice of laws” problem. The court observed that the laws of California and Mexico were not
identical. As in the present case, Mexico limited recovery to a few thousand dollars. California
law provided that the heirs of the decedent are entitled to recover such sum, as under the
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd
circumstances of the case, will be just compensation for the pecuniary loss which each heir of the
decedent has suffered by reason of death of the decedent.
As the court decided in court held that although two potentially
concemed states had different laws, there would be no problem choosing the applicable rule
where only one of the states has an interest in having its law applied. In other words, when one
of the two states in a case has a legitimate interest in application of its law and policy and the
other has none, there is no real problem; clearly the law of the interested state should apply.
The court observed that the interest ofa state in a tort rule limiting damages for wrongful
death is to protect defendants from excessive financial burdens or exaggerated claims. The
interest to avoid excessive financial burdens on defendants is primarily local in nature. A state,
by enacting a limitations on damages, is seeking to protect its residents from excessive financial
burdens. Such a preference does not reflect a preference that widows and orphans should be
denied full recovery. The court specifically held that since it was the Plaintiffs and not the
defendants who were Mexican, Mexico had no interest in applying its limitations on damages.
Since there were no Mexican defendants to protect, Mexico had no interest in denying its own
residents full recovery by injury caused by non-Mexicans. This is exactly the case the court is
presented with here.
court further added that it is manifest that one of the reasons California
created a cause of action for wrongful death of the heirs of the decedent has to deter the kind of
conduct within its borders that wrongfully takes life. In the present case, that policy is
effectuated by holding Cooper to account for designing, manufacturing, and then selling its
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd
defective tire product into the California stream of commerce and causing injury.
court went on to say that a state which prescribes a limitation on damages
modifies the sanction imposed by a counter-veiling concern to protect local defendants from
excessive financial burdens for the conduct sought to be deterred. Therefore, because Mexico
has no interest in applying its limitations on damages in wrongful death actions to non residents
or denying full recovery to its resident plaintiffs, the trial court properly applied California law.
This reasoning is consistent with , and its application by this court’s decision to deny
Cooper’s effort to benefit from Mexico’s tort damage limitations. Cooper is a U.S. company
which manufactured its product in the U.S. and sold it in California to California residents. It is
not the intended benefactor of Mexico’s limitations on damages.
Vv. THE COURT’S DECISION TO APPLY CALIFORNIA LAW WAS CORRECT
The Restatement Second on Conflicts, as adopted by Texas in requires the trial
court to apply the law of the state with the most significant relationship to the facts of the case.
Cooper now argues that Texas law is no different than California law, thus, a “false conflict”
persists which requires the court to apply the law of the forum.
Cooper’s argument misses the point of the Restatement’s rules. In the present case,
Texas’ only interest in this case derives froma forum selection agreement between the parties.
The court will recall that it interpreted this agreement as being confined to a stipulation on venue
and jurisdiction when it denied Plaintiffs’ motion to enforce it as a choice of law agreement.
Neither the parties, events or product at issue have a direct connection to Texas.
Conversely, the sale, maintenance and operation of the subject tire originated and transpired
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd
entirely in California. Additionally, Four (4) of the six (6) persons killed and two of the
survivors resided in California. Since the sole connection to Texas for this case comes from a
forum agreement reached, after the fact, California’s interest and relationship to the facts
predominates over that of Texas.
Curiously, Cooper argues that California and Texas law are the same for the liability and
damages issues presented by this case. If that were true, why would Cooper have any problem
with applying California law? The outcome should be the same if the law is the same. The fact
is, Cooper brings this motion because the two states differ in ways that may be adverse to
Cooper’s chances for a favorable defense. For example, California is a pure comparative
jurisdiction and Texas is not. Texas law will bar recovery if a Plaintiff is found more than 50%
responsible, but California will only reduce the recovery by a Plaintiff's percentage of fault.
Also, California has no fixed statutory cap on exemplary damages. In Texas, exemplary damages
are capped by statute. Thus, Coopers potential exposure is larger under California law.
If this court reverses its decision and applies Texas law under the facts presented, it
undermines the intent of the Restatement Second that the state with the most significant
relationship be the one whose law is applied.
, Plaintiffs & Intervenors pray the court affirm its previous decisions on the
choice of law questions by denying Cooper’s motion for reconsideration in its entirety.
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd
Respectfully submitted,
LAWRENCE LAW FIRM
A Professional Corporation
3112 Windsor Rd., Suite A234
(956) 994-0057
(956) 994-0741 FAX
By:/s/Larry W. Lawrence:
LARRY W. LAWRENCE, JR.
State Bar No. 00794195
ATTORNEY FOR PLAINTIFFS &
INTERVENORS
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd
CERTIFICATE OF SERVICE
The foregoing document was served on the following counsel of record this 8th _ day of August
Rafe Taylor
Michael Pita
Johnson Spalding
919 Milam, Suite 1700
/s/ Larry W. Lawrence, Jr.
LARRY W. LAWRENCE, JR.
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd
Preview
LISETTE RAMIREZ IN THE DISTRICT COURT Individually and as Next Friend to CYNTHIA GARCIA RAMIREZ and JESUS GARCIA RAMIREZ, minors, as the Wrongful Death Beneficiaries of ALONSO GARCIA, Deceased, PATRICIA RAMIREZ DE GARCIA, Deceased, and JOHANNA ARACELI GARCIA RAMIREZ, Deceased JORGE ROSAS GARCIA on Behalf of all the Wrongful Death Beneficiaries of MARGARITA GARCIA SANCHEZ, Deceased, LUIS ALBERTO NAVARRO GARCIA § on Behalf of all the Wrongful Death § Beneficiaries of MARIA LUISA GARCIA§ SANCHEZ, Deceased, § § HARRIS COUNTY, TEXAS VICTOR RAMIREZ LOPEZ § on Behalf of all the Wrongful Death § Beneficiaries of CIRILA LOPEZ § GARCIA Deceased, § Plaintiffs § JOSE RAMIREZ ALONSO, JORGE RAMIREZ LOPEZ, LUCIA RAMIREZ LOPEZ, CRISTINA ALVAREZ, JORGE ROSAS GONZALEZ, DEOLINDA ROSAS GARCIA, MOISES DE JESUS ROSAS GARCIA, DIOVENI MARGARITA ROSAS GARCIA, ALFREDO NAVARRO, ALFREDO NAVARRO GARCIA, MARICELA NAVARRO GARCIA and GABRIELA NAVARRO GARCIA Intervenors C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd VS. COOPER TIRE & RUBBER CO. § Defendant § 157th JUDICIAL DISTRICT PLAINTIFFS’ AND INTERVENORS’ RESPONSE TO COOPER TIRE’S MOTION TO RECONSIDER COURT’S MAY 29, 2012 RULINGS ON CHOICE OF LAW ISSUES TO THE HONORABLE JUDGE OF SAID COURT: PLAINTIFFS’ AND INTERVENORS Cooper Tire & Rubber Company’s Motion to Reconsider the Court’s May 29, 2012 rulings on Choice of Law Issues and in support of same would show: I COOPER’S MOTION TO RECONSIDER PRESENTS NO CHANGE IN TEXAS LAW TO MERIT A RECONSIDERATION In its current challenge to this court’s orders denying Cooper’s Motion to Apply the Law of Mexico and granting Plaintiffs’ Motion to Apply the Law of California, Cooper offers no new case law which overrules or distinguishes the holding in Ford Motor Co. v. Anguinia, 9 S.W.3d 252, 262(Tex. App.—San Antonio 1999, pet. denied) The court will recall that at the original hearing, Cooper’s only retort to the application of was an ad hoc attempt to disparage the motives of Justices of the 4 Court of Appeals who rendered it. Specifically, Cooper argued that the Justices had issued what was described as a “results oriented” decision with no proper merit. Somewhat incredulously, the court noted that one of the authors of the opinion now sits on the Texas Supreme Court. Cooper’s motion to reconsider is no less insulting in that it now questions the wisdom of this court’s application of to the facts of the present case without any support in the law for this claim. C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd The court will recall that and the present case share several key factual similarities. Both cases center on allegations that defects in an automotive product, designed, manufactured, marketed, sold and serviced in the United States by United States companies, and used by U.S. consumers, caused an accident during a vacation to Mexico. In both cases, citizens of both the United States and Mexico were killed. Neither case involved a named defendant who was a citizens of Mexico. In applying to the facts in this case, the trial court correctly found that the place of the accident, having occurred while the vehicle owners were on vacation in Mexico, had been merely fortuitous and not the lynchpin to Mexico Cooper still claims. The court’s decision was further supported by the fact that, as in , there was no Mexican defendant to invoke Mexico’s interest in limiting damages exposure of domestic defendants that are sued in tort. Therefore, this conflict with Mexico was a false one. In its motion, Cooper presents the same old argument that the court should bring back doctrine which predated Texas’ adoption of the Restatement Second on Conflicts. Cooper presented no authority then and none now which controverts and/or reinstates Il COOPER PRESENTS NO NEW EVIDENCE THAT MERITS A RECONSIDERATION BY THE COURT OF ITS RULINGS Affidavit of Joe Grant Cooper’s provides the court with an affidavit of its tire expert Joseph Grant. This affidavit is an attempt to connect the failure of the tire to a “phantom” impact that Grant alleges C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd occurred while the vehicle was in Mexico. Grants’s affidavit lacks any credibility on the facts presented in this case. In particular, the surviving accident victims, Cynthia and Jesus Ramirez, have unequivocally testified that they traveled in the subject vehicle during the 1500 plus mile journey which took them from their hometown of Yuba, California to Jalisco, Mexico where the accident occurred. They attested to the fact that the vehicle never experienced any type of impact with a road hazard or any other service issues during the entirety of the journey. These depositions are attached herein as Exhibits 1 & 2 Cynthia and Jesus also testified that the vehicle was run under normal conditions and without incident until the subject tire suddenly Plaintiffs have presented substantial evidence that the failure of this tire was the result of errors in design and manufacturer that occurred wholly in the United States and many years before this vehicle traveled into Mexico. If the tire was unable to operate without failure under the conditions described by Jesus and Cynthia, then it shows a lack of robustness in the design is the result of numerous manufacturing documented by Plaintiffs’ tire expert. See Report of Troy Cottles, Exhibit 3 B Affidavit of Richard Tonda Cooper provides the affidavit of accident reconstruction expert Richard Tonda in an effort to try and connect the loss of vehicle control to driver error. Plaintiffs have presented expert evidence to show that the driver’s response was what your expect an average persons to be in the face ofa sudden catastrophic failure. See report of Steve Arndt, Exhibit 4. Moreover, there is no eyewitness or other testimony which supports any claim that the drivers’ response was erratic C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd or abnormal under the emergency circumstances of the tire failure. Lastly, and most significant to the conflicts of law issues, the driver is not and never has been a litigant in this case. His personal or financial interest will be affected by the outcome of this lawsuit regardless of whether Cooper designates him as a responsible third party. Therefore, Mexico’s interest in having its law applied to the driver’s conduct is not invoked by this case. Tonda’s affidavit is nothing more than Cooper use of “paid for” evidence to manufacture what is defined by as a “false conflict”. Til. CALIFORNIA LAW NOT APPLICABLE TO TRIAL COURT’S DECISION ON CHOICE OF LAW ISSUES Cooper now wants to argue that if California law applies to the liability and damages issues in this case, then California’s choice of law rules should apply to a reconsideration of the choice of law question. This reasoning is not only circular, it violates the very first rule found in Section 6 of the Restatement Second of Conflicts which says: A court, subject to constitutional restrictions, will follow a statutory directive of its own Gutierrez v Collins, 583 S.W.2d 312, 318 (Tex. 1979 By this rule, the trial court’s analysis should be guided by the directives of Texas law on deciding choice of law questions. Cooper’s assertion that the trial court, having found California law applicable to this case, should revisit the choice of law question pursuant to California law is contrary to the rule expressed in the Restatement and adopted by the Texas Supreme Court in . Cooper presents no law or evidence that applies the rule #1 of Section 6 the way it C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd IV. CALIFORNIA LAW CONSISTENT WITH AGUINIGA V FORD , that the court should now be guided by California law for re- deciding the choice of law questions in this case, Plaintiffs would show that Cooper mis-states California’s rules on choice of law by “mixing the apples with the oranges” when it attempts to fit a forum non conveniens analysis into a choice of law question. All the cases and orders from California it cites are forum non conveniens decisions. The Restatement says nothing about using FNC rules to decide choice of law issues. Plaintiffs would show that the same “false conflict” analysis guiding the decision, was applied by the California Supreme Court when it decided Court, 11 Cal. 3d. 574 (Cal. 1974). Hurtado was an action for wrongful death arising from an accident that occurred in California. The decedent was a resident of Mexico visiting his brother in California at the time of the accident. All the defendants were from The defendants moved to have Mexican damages law apply to the claims of the decedent. These defendants made the same argument that Cooper is now making that Mexican residents should have their damages assessed by the law of where they live regardless of who caused the harm or where it originated. On mandamus, the California Supreme court held that the fact that two different states are involved does not itself indicate that there is a “conflict of laws” or a “choice of laws” problem. The court observed that the laws of California and Mexico were not identical. As in the present case, Mexico limited recovery to a few thousand dollars. California law provided that the heirs of the decedent are entitled to recover such sum, as under the C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd circumstances of the case, will be just compensation for the pecuniary loss which each heir of the decedent has suffered by reason of death of the decedent. As the court decided in court held that although two potentially concemed states had different laws, there would be no problem choosing the applicable rule where only one of the states has an interest in having its law applied. In other words, when one of the two states in a case has a legitimate interest in application of its law and policy and the other has none, there is no real problem; clearly the law of the interested state should apply. The court observed that the interest ofa state in a tort rule limiting damages for wrongful death is to protect defendants from excessive financial burdens or exaggerated claims. The interest to avoid excessive financial burdens on defendants is primarily local in nature. A state, by enacting a limitations on damages, is seeking to protect its residents from excessive financial burdens. Such a preference does not reflect a preference that widows and orphans should be denied full recovery. The court specifically held that since it was the Plaintiffs and not the defendants who were Mexican, Mexico had no interest in applying its limitations on damages. Since there were no Mexican defendants to protect, Mexico had no interest in denying its own residents full recovery by injury caused by non-Mexicans. This is exactly the case the court is presented with here. court further added that it is manifest that one of the reasons California created a cause of action for wrongful death of the heirs of the decedent has to deter the kind of conduct within its borders that wrongfully takes life. In the present case, that policy is effectuated by holding Cooper to account for designing, manufacturing, and then selling its C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd defective tire product into the California stream of commerce and causing injury. court went on to say that a state which prescribes a limitation on damages modifies the sanction imposed by a counter-veiling concern to protect local defendants from excessive financial burdens for the conduct sought to be deterred. Therefore, because Mexico has no interest in applying its limitations on damages in wrongful death actions to non residents or denying full recovery to its resident plaintiffs, the trial court properly applied California law. This reasoning is consistent with , and its application by this court’s decision to deny Cooper’s effort to benefit from Mexico’s tort damage limitations. Cooper is a U.S. company which manufactured its product in the U.S. and sold it in California to California residents. It is not the intended benefactor of Mexico’s limitations on damages. Vv. THE COURT’S DECISION TO APPLY CALIFORNIA LAW WAS CORRECT The Restatement Second on Conflicts, as adopted by Texas in requires the trial court to apply the law of the state with the most significant relationship to the facts of the case. Cooper now argues that Texas law is no different than California law, thus, a “false conflict” persists which requires the court to apply the law of the forum. Cooper’s argument misses the point of the Restatement’s rules. In the present case, Texas’ only interest in this case derives froma forum selection agreement between the parties. The court will recall that it interpreted this agreement as being confined to a stipulation on venue and jurisdiction when it denied Plaintiffs’ motion to enforce it as a choice of law agreement. Neither the parties, events or product at issue have a direct connection to Texas. Conversely, the sale, maintenance and operation of the subject tire originated and transpired C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd entirely in California. Additionally, Four (4) of the six (6) persons killed and two of the survivors resided in California. Since the sole connection to Texas for this case comes from a forum agreement reached, after the fact, California’s interest and relationship to the facts predominates over that of Texas. Curiously, Cooper argues that California and Texas law are the same for the liability and damages issues presented by this case. If that were true, why would Cooper have any problem with applying California law? The outcome should be the same if the law is the same. The fact is, Cooper brings this motion because the two states differ in ways that may be adverse to Cooper’s chances for a favorable defense. For example, California is a pure comparative jurisdiction and Texas is not. Texas law will bar recovery if a Plaintiff is found more than 50% responsible, but California will only reduce the recovery by a Plaintiff's percentage of fault. Also, California has no fixed statutory cap on exemplary damages. In Texas, exemplary damages are capped by statute. Thus, Coopers potential exposure is larger under California law. If this court reverses its decision and applies Texas law under the facts presented, it undermines the intent of the Restatement Second that the state with the most significant relationship be the one whose law is applied. , Plaintiffs & Intervenors pray the court affirm its previous decisions on the choice of law questions by denying Cooper’s motion for reconsideration in its entirety. C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd Respectfully submitted, LAWRENCE LAW FIRM A Professional Corporation 3112 Windsor Rd., Suite A234 (956) 994-0057 (956) 994-0741 FAX By:/s/Larry W. Lawrence: LARRY W. LAWRENCE, JR. State Bar No. 00794195 ATTORNEY FOR PLAINTIFFS & INTERVENORS C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd CERTIFICATE OF SERVICE The foregoing document was served on the following counsel of record this 8th _ day of August Rafe Taylor Michael Pita Johnson Spalding 919 Milam, Suite 1700 /s/ Larry W. Lawrence, Jr. LARRY W. LAWRENCE, JR. C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ResponsetoMotiontoReconsider.wpd