Preview
LISETTE RAMIREZ
CAUSE NO. 2011-01896
IN THE DISTRICT COURT
fay
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,
FILED
Deceased, and JOHANNA ARACELI
GARCIA RAMIREZ, Deceased
Chris Daniel
District Clerk
JORGE ROSAS GARCIA
on Behalf of all the Wrongful Death MAY 29 2012
Beneficiaries of MARGARITA
Time: Farris County, Texas.
GARCIA SANCHEZ, Deceased,
8y¥ sag
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 8
Beneficiaries of CIRILA LOPEZ §
GARCIA Deceased,
Plaintiffs
Bo
JOSE RAMIREZ ALONSO,
GVSoe
JORGE RAMIREZ LOPEZ, one
Sosa
LUCIA RAMIREZ LOPEZ, CRISTINA a 2740
ALVAREZ, JORGE ROSAS sar
=xrzo
GONZALEZ, DEOLINDA ROSAS ce Om
sae
ma
GARCIA, MOISES DE JESUS ROSAS
GARCIA, DIOVENI MARGARITA 2
ROSAS GARCIA, ALFREDO
NAVARRO, ALFREDO NAVARRO
GARCIA, MARICELA NAVARRO
GARCIA and GABRIELA NAVARRO
GARCIA
Intervenors
vs.
COOPER TIRE & RUBBER CO.
Defendant 157th JUDICIAL DISTRICT
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
RECORDER'S MEMORANDUM
Jhis instrument is of poor quality
At the time of imaging
PLAINTIFFS’ & INTERVENORS’ MOTION TO ENFORCE TRCP RULE11
SJURISDICTION/VENUE AGREEMENT, AND IN THE ALTERNATIVE, MOTION TO
TAKE JUDICIAL NOTICE AND APPLY THE LAWS OF
THE STATE OF CALIFORNIA
COME NOW, ALL PLAINTIFFS & INTERVENORS NAMED IN THE ABOVE
CAPTIONED CASE, and file this Motion to Enforce a TRCP Rule 11 Agreement on
Jurisdiction/Venue, and in the alternative, Motion to take Judicial Notice and Apply the Laws of the
State of California, and in support of same would show the following:
I. BACKGROUND FACTS
a. The Accident
This case arises from a single vehicle accident that occurred on January 4, 2010 in Jalisco,
Mexico. While on a family vacation to Mexico, the Plaintiffs were passengers in a 1999 Chevrolet
Suburban equipped with tires made by Cooper Tire & Rubber Company (“Cooper). While traveling
at highway speed, the left rear tire of the Suburban sustained a catastrophic tread separation. This
tread separation caused a loss of vehicle control by the driver and subsequent violent rollover. As
a result of this accident, the following six(6) persons were killed: Patrica Garcia de Ramirez
(“Patricia”), Alonso Ramirez (“Alonso”), Johanna Ramirez (“Johanna”), Cirila Lopez (“Cirila”),
Margarita Sanchez Garcia, (“Margarita”) and Maria Luisa Ramirez Garcia (“Luisa”). The remaining
passengers, which include Plaintiffs Jesus Ramirez (“Jesus”) and Cynthia Ramirez (“Cynthia”), were
injured.
6. The Tire & Vehicle
The 1999 Chevrolet Suburban was registered, maintained, and primarily operated in the State
of California by Alonso and Patricia, who were husband and wife. (Ex 1. Vehicle Title-Attached)
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
The subject tire, a Cooper Discoverer HT, and its 3 matching companion tires, were
purchased new by Patricia at a Big O Tire & Service Center in Yuba City, California. These tires
were subsequently inspected, serviced, rotated and balanced at the same Big O Tire store in
California. ( Ex. 2, Tire Purchase & Service Invoices-Attached)
There is no dispute that the subject tire was designed, manufactured, marketed and warranted
by Cooper Tire and Rubber Company (“Cooper”) in the United States. Therefore, the entirety of the
relationship between the Plaintiffs and Cooper originates and was exclusively centered in the State
of California.
¢. Residence and Domicile of the Parties
Cooper is an Ohio corporation, which sells its products throughout the United States,
including California and Texas. Cooper maintains owns and operates its test track facilities in
Texas. Cooper manufactured the subject tire at its Texarkana plant. Cooper also sold and marketed
the subject tire in California directly to the Plaintiffs.
Alonso, Patricia and Johanna, all U.S. citizens, resided in the State of California at the time
of their deaths. ( Ex. 3, U.S. Passports and Identifications-Attached) Alonso and Patricia were
both gainfully employed in California. ( Ex. 4, California State Income Tax 2008-Attached)
Jesus and Cynthia, who are surviving children of Alonso and Patricia, are U.S. citizens and residents
of California. (Ex. 5, U.S. Passports-Attached) Lisette Ramirez (‘Lisette”), the daughter of
Patricia, is a U.S. citizen and also a resident of California. (Ex. 5, U.S. Passport-Attached)
Cirila was a U.S. Permanent Resident who resided with her daughter Patricia in California
at the time of her death. (Ex. 6, U.S. Permanent Resident Card & CA Driver’s Lic.-Attached)
Her husband, Jose Ramirez Alonso (”Jose”), is also U.S. permanent resident.
CAUsers\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
Margarita and Luisa were citizens of Jalisco, Mexico at the time they died. All of their
wrongful death beneficiaries reside in Mexico.
d. Procedural History
Plaintiffs originally brought their claims against Cooper and its wholly owned subsidiary,
Cooper Tire & Vehicle Test Center, Inc. (CTVTC) in Frio County Texas. CTVTC is a Texas
corporation located and headquartered in Frio County. CTVTC is where Cooper performs is
developmental testing for its various tire products and where the Plaintiffs originally chose to bring
their action arising from the negligence in the testing and post productionmonitoring of the subject
model tire.
With its answer, Cooper and CTVTC filed a motion to transfer venue to Dallas County,
Texas. Before a ruling by the Frio District court on the venue motion, the parties agreed and signed
an agreement whereby the case would be transferred to Harris County, Texas. Plaintiffs agreed to
non-suit CTVTC from the lawsuit and Cooper specifically agreed that the District Courts of Harris
County Texas would have exclusive jurisdiction and venue over this litigation. (Ex. 7, Rule 11
Agreement re: Venue/Jurisdiction-Attached) Cooper’s motion to apply the law of Mexico is a
reneging of that agreement and Plaintiffs by this motion seek enforcement of the agreement by an
order that Texas law applies to the substantive issues in this case. Pleading in the alternative,
Plaintiffs & Intervenors, herein file their response Cooper Motion to Apply Mexican law and their
own counter motion to apply the law of California to this case.
Il. CHOICE OF LAW IN TEXAS
In Texas, the “most significant relationship” test governs all conflicts of law cases sounding
in tort. Gutierrez v Collins, 583 S.W.2d 312, 318 (Tex. 1979). In wrongful death actions, the
C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
legislature has admonished the courts to apply the rules of substantive law “that are appropriate
under the facts of the case” TX CPRC 71.031(c) (Vernon 1997). The Texas Supreme Court has
interpreted 71.031(c) to incorporate the “most significant relationship” test. Total Oil Field Serv.
Inc. 711 S.W.2d 237, 239 (Tex. 1986).
The “most significant relationship” test is outlined by Sections 6 and 145 of the Restatement
Second of Conflicts. Gutierrez, 583 S.W. 2d at 318. Section 6 sets out the following general choice
of law principals:
1 Accourt, subject to constitutional restrictions, will follow a statutory directive of its own state
on choice of law;
When there is no such directive, the factors relevant to the choice of the applicable rule of
law include:
(a) The needs of interstate and international systems;
(b) The relevant policies of the forum;
©) The relevant policies of other interested states and the relative interest of those states
in the determination of the particular issue;
(a) The protection of justified expectations;
() The basic policies underlying the particular field of law;
@ Certainty, predictability and uniformity of result; and
(g) Ease in the determination and application of the law to be applied.
When applying the Section 6 principals to a tort case, Section 145(2) of the Restatement
states that the court must consider the following contacts:
@) The place where the injury occurred;
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
(b) The place where the conduct causing the injury occurred;
(©) The domicile, the residence, nationality, place of incorporation, and place of business
of the parties;
(@) The place where the relationship, if any, between the parties is centered. Jd at 319.
Application of the “most significant relationship” test does not turn on the number of contacts
listed in section 145, but rather on the qualitative nature of those contacts as affected by the policy
factors found in section 6. /d. The court must determine the relationship between the contacts and
the policy factors on a case by case basis. Id.
V.CALIFORNIA PRODUCTS LIABILITY
Plaintiffs and Intervenors ask the court to take judicial notice of California’s strict products
liability doctrine. California was the first state in the nation to adopt the doctrine of imposing strict
liability for defective products. The doctrine, as originally stated by California Supreme Court,
reads as follows: "A manufacturer is strictly liable in tort when an article he places on the market,
knowing that it is to be used without inspection for defects, proves to have a defect that causes injury
to a human being. . . . The purpose of such liability is to insure that the costs of injuries resulting
from defective products are borne by the manufacturers that put such products on the market rather
than by the injured persons who are powerless to protect themselves." (Greenman v. Yuba Power
Products, Inc. (1963) 59 Cal.2d 57, 62-63 [27 Cal.Rptr. 697, 377 P.2d 897].)
"A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or
design of its product causes injury while the product is being used in a reasonably foreseeable way."
(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560 [34 Cal.Rptr.2d 607, 822 P.2d 298],
internal citations omitted.)
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\P leadings\ChoiceofLawCounterMotion.wpd
Vv. CHOICE OF LAW RULES APPLIED TO
U.S.-MEXICO CASES
In Texas, the “most significant relationship” test has been applied to cases, like the present
one, that involve an accident in Mexico; a product made and sold in the United States by a domestic
manufacturer; and which results in harm to claimants from both countries. Two Texas cases in
particular, discussed in detail below, have direct application to the case at bar. They are Ford Motor
Co. v. Anguinia, 9 S.W.3d 252, 262(Tex. App.—San Antonio 1999, pet. denied); and Sanchez v
Brownsville Sports Center Inc. et al, 51 S.W.3d 643, 671 (Tex.App.— Corpus Christi 2001, pet.
granted, judgm't vacated w.r.m. A third decision, issue by the California Supreme Court, discusses
why the application of the Mexican law on damages to any part of the present case is not appropriate
to the circumstances and would circumvents a very important public policy interest shared by
California and Texas. Hurtado v Superior Court, 11 Cal. 3d 574 (Cal. 1974)
a. Ford v Aguiniga, 9 S.W.3d 252, 262(Tex. App.San Antonio 1999, pet. denied);
Anguinia is a case with 145 factors substantially similar to those in the present case. How
the Aguinina court analyzed the choice of law issue is instructive as to how the court should decide
the same issue in the present case. For the court’s convenience, the following is the specific excerpt
from the Aguiniga decision dealing directly with the choice of law issues (bold), together with a
tracking comparison to the facts in the present case:
“Choice of Law
In its fifth issue, Ford contends that the claims in this case should have been
governed by the substantive law of Mexico. Ford bases this assertion on the facts of
the case: a vehicle, purchased in Louisiana, crashed off of a Mexican highway while
C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
it carried eight Mexican nationals who were subsequently hospitalized in a Mexican
hospital. The accident was then investigated by Mexican authorities.”
In the present case, Cooper contends that the claims in this case should be governed by
the substantive law of Mexico. Cooper bases its assertion on the fact that a tire, purchased in
California, failed and caused a crash on a Mexican Highway while it carried residents of
California and Mexico. The accident was then investigated by Mexican authorities.
“In Gutierrez v. Collins, 583 S.W.2d 312, 319 (Tex. 1979), Texas adopted the "most
significant relationship" test to determine the choice of law as espoused under
sections 6 and 145 of the Restatement (Second) of Conflicts of Law(5). Under this
test, we consider the following factual matters: (1) the place where the injury
occurred; (2) the place where the conduct causing the injury occurred; (3) the
domicile, residence, nationality, place of incorporation and place of business of the
parties; (4) the place where the relationship, if any, between the parties is centered.
Id.; Restatement (Second) of Conflicts of Laws 145 (1971). The number of contacts
is not determinative, rather the qualitative nature of those particular contacts.
Duncan, 655 S.W.2d at 421.”
In the present case, Gutierrez and application of Sections 6 and 145 of the Restatement
continue to be controlling on choice of law issues.
“Initially, we identify the conflict of law which would necessitate the trial court to
decide a choice of law issue. Here, Ford asserts that the amount of damages which
plaintiffs could have recovered under Mexican law would have been limited. In
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
Texas, those same damages would not have been limited. Next, we consider the
relevant contacts, as they are determinative in identifying the governmental
interests at stake. See Duncan, 665 S.W.2d at 421(6).
In the présent case, Cooper asserts that amount plaintiffs and intervenors can recover
under Mexican law would be limited. By its experts’ testimony the recovery would be well
under twenty thousand ($20,000.00) dollars per decedent. Conversely, in Texas and California,
those same damages would not be limited. Therefore, the court must then consider the relevant
contacts, as they are determinative in identifying the governmental interest at stake.
“The following undisputed state contacts exist: thirteen Texas residents were
plaintiffs below; Ford was a United States corporation conducting business in
Texas; the van was inspected, licensed, registered, and primarily operated in Texas;
and, the van was owned by Texas residents. Contacts with Mexico include the
following: the accident occurred in Mexico; eight of the eleven people killed were
Mexican nationals; the accident victims were hospitalized in Mexico; and Mexican
authorities investigated the accident. Ford adds that while it may conduct business
in Texas, the van in the present case was manufactured in Michigan and sold in
Louisiana.”
In the present case, four (4) out of the six (6) persons killed in the accident were residents
of California. Two of the surviving passengers, Jesus and Cynthia, are also residents of
California and received medical treatment in California. Cooper is a United States corporation
-conducting business in Texas and California. The vehicle and tire were inspected, registered,
sold, owned and maintained in California to and by California residents. Contacts with Mexico
C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
include: 7 of the 13 vehicle passengers were Mexican residents. Some of the accident survivors
received treatment in Mexico and Mexican authorities investigated the accident.
“Finally, we consider the governmental interests asserted by the parties. Ford
contends that Mexico maintains a strong governmental interest in the operation of
motor vehicles on its highways. Appellees, on the other hand, maintain that Texas
has a strong interest in protecting its citizens, whether United States citizens or
residents, from injuries resulting from defective products.”
In the present case, Cooper contends that Mexico maintains a strong governmental
interest in the operation of motor vehicles on its highways. Plaintiffs, on the other hand,
maintain that California has a strong interest in protecting its residents from injuries resulting
from defective products.
“As a general rule, in matters of a tort or personal injury, the situs of the injury
determines the rights and liabilities of the parties. See Restatement (Second)
Conflict of Laws 146 (1971); James P. George, Conflicts of Law: A Guide for Texas
Attorneys, 25 Tex. Tech L. Rev. 833, 848-49. However, this rule of law reflects the
old mechanical rules of lex locus delecti and lex locus contractus. George, 25 Tex.
Tech L. Rev. at 849. The former was rejected by the Texas Supreme Court in
Gutierrez. And thus, we too do not consider it dispositive of the choice of law issue.
See De Aguilar v. Boeing Co., 47 F.3d 1404, 1413-14 (5th Cir.), cert denied, 516 U.S.
865 (1995).”
In the present case, the fact that the tire happen to fail while in Mexico is merely
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
fortuitous and not dispositive of the choice of law issue.
“Our review of this case established that Mexico has no interest in this litigation.
Ford is a United States corporation, not a Mexican corporation. Defendant Marta
Velazquez was a Texas resident and United States citizen. This fact establishes that
neither defendant is a Mexican resident, citizen, nor business. Therefore, there is not
a Mexican defendant who would be protected by the limitations in damages under
Mexican law. See also Baird v. Bell Helicopter Textron, 491 F. Supp. 1129, 1141
(N.D. Tex. 1980) (stating that British Columbia's interest in protecting its citizens
from excess liability is not implicated if defendant is a Texan).
In the present case, the court should reach the same conclusion that Mexico has no
interest in this litigation. Cooper is a U.S. corporation, not a Mexican corporation. The facts
establish that there is no Mexican defendant who would be protected by the limitation in
damages under Mexican law.
“While purchased in Louisiana, the Aguiniga van was inspected and primarily
operated in Texas. The majority of the individuals killed in the accident were Texas
residents. See Gutierrez, 583 S.W.2d at 319 (stating that when two residents of the forum
‘
are involved in an accident in another state, the law of the forum applies). In addition, the
majority of claimants suing are Texas residents.”
In the present case, the tire was purchased, inspected, serviced and primarily operated in
California. Also, the majority of the persons killed in the accident were residents of California.
“Given these contacts, the only interest which exists is that of Texas. That interest is
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
this state's strong policy in controlling corporate action in the manufacture of
defective products. See Vizcarra v. Holdan, 925 S.W.2d 89, 91 (Tex. App.—El Paso
1996, no pet.) Simply, Texas maintains an interest "in protecting its citizens from,
and compensating them for, injuries resulting from defective products." Baird, 491
F. Supp. at 1150-51. Thus, Texas has an interest in protecting consumers from
defective products such as the relays involved in the present case. Ultimately, given
Texas's interest and Mexico's lack of the same, there would appear to be a "false
conflict" between U.S. and Mexico governmental interests which necessitates that
Texas law apply. See Duncan, 665 S.W.2d at 422. Accordingly, we overrule Ford's
fifth issue.”
Given the contacts present in this case, the only interest are those of Texas as the forum
agreed to by the parties, and California which both have a strong policy in controlling corporate
action in the manufacture of defective products. Texas and California maintain a strong interest
protecting its citizens from, and compensating them for, injuries resulting from defective
products. Thus, Texas and California have an interest in protecting consumers from the defective
tire involved in this case. Given Texas and California’s interest, and Mexico’s lack of same,
there would appear to be a ‘false conflict ‘ between the U.S. states of Texas & California and
Mexico governmental interest that would necessitate that the unrestricted remedies available
under California and Texas law apply to this case.
b. Hurtado v Superior Court, 11 Cal. 3d 574 (Cal. 1974)
The same “false conflict” reasoning relied upon by the Aguiniga court was applied by
California’s Supreme Court when it decided Hurtado v Superior Court. Hurtado was an action
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
for wrongful death arising from an accident that occurred in Sacramento County, California. The
decedent was a resident of Mexico visiting his brother in California at the time of the accident.
The defendants were from California.
The defendants moved to have Mexican damages law apply to the claims of the deceased.
These defendants made the same argument Cooper is making in the present case that Mexican
residents should have their damages assessed by the law of there residence regardless of who
caused the harm and 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 law”
problem. It observed that the laws of California and Mexico were not identical. As in the present
case, Mexico limited recovery in wrongful death actions to a few thousand dollars. California
law provided that heirs of the decedent are entitled to recover such sum, as under the
circumstances of the case, will be just compensation for the pecuniary loss which each heir of the
decedent has suffered by reason of the death of the decedent.
As in Aguiniga, the Hurtado court held that although two potentially concerned states had
different laws, there would be no problem in choosing the applicable rule of law where only one
of the states has an interest in having its law applied. In other words, when one of two states in a
case has a legitimate interest in the application of its law and policy and the other has none, there
is no real problem; clearly the law of the interested state should be applied.
The court observed that the interest of a 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 the imposition of excessive financial burdens on defendants is primarily local.
C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
A state, by enacting a limitation on damages, is seeking to protect its residents from excessive
financial burdens. Such a policy does not reflect a preference that widows and orphans should be
denied full recovery. The court specifically help that since it is the plaintiffs and not the
defendants who were Mexican residents, Mexico had no interest in applying its limitation on
damages. Since there were no Mexican defendants to protect, Mexico had no interest in denying
its own residents full recovery for injuries caused by non-Mexicans.
The Hurtado Court went on further to add, that it is manifest that one of the primary
reasons for a state creating a cause of action on the heirs for the wrongful death of a decedent is
to deter the kind of conduct within its borders which wrongfully takes life. In the present case,
that policy is effectuated by holding Cooper to account for designing, manufacturing, marketing
and then selling a defective product into California’s stream of commerce.
The Hurtado court went in to say that, on the other hand, a state which prescribes a
limitation on the measure of damages modifies the sanction imposed by a counter veiling
concern to protect local defendants against 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-resident defendants or in denying full recovery to its resident
plaintiffs, then the court appropriately applied California law.
The same reasoning can be applied regarding the present case. Since Cooper is a U.S.
company accused of wrongful conduct occurring in California, it cannot be said that Mexico has
any interest in protecting Cooper from excessive financial burdens imposed by California’s
clearly expressed interest in deterring such conduct in allowing for full compensation to the
widows and orphans in this case.
C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
Cc. Sanchez v Brownsville Sports Center Inc. et al, 51 S.W.3d 643, 671 (Tex.App.—
Corpus Christi 2001, pet. granted, judgm't vacated w.r.m.
Sanchez is another case involving an accident in Mexico; arising from a defective product
made by a U.S. manufacturer and originally sold in the U.S. This case is distinguishable from
the case at bar only to the extent that all of the Plaintiffs were Mexican nationals. Regardless of
that fact, as will be discussed below, the court still concluded that Mexican substantive law on
damages should not be applied under a 145 choice of law analysis.
The following is the direct excerpt from that decision in bold type followed by
comparisons to those in the present case:
“At the outset, we apply the factual matters stated under 145(2). The evidence
showed that Polito died in Matamoros, Mexico. The alleged wrongful conduct of
Honda that caused the death occurred in Japan, where the ATV was designed and
manufactured, and in Texas, where the ATV was first placed in the stream of
commerce. The alleged negligence conduct of the Ramoses occurred in Mexico.”
In the present case, Alonso, Patricia, Johanna, Cirila, Luisa and Margarita died in Mexico.
The alleged wrongful conduct by Cooper that caused the death occurred in the United States
where the tire was designed, manufactured and tested, and in California, where the tire was first
placed in the stream of commerce.
“Polito and his family are domiciled in or residents of Mexico. Honda Motor Co.
Ltd. And Honda R&D Co. Ltd. Are Japanese corporations and their principal place
of business is in Japan. Honda R&D North America, Inc., Honda North America,
Inc. and American Honda Motor Co., Inc. Are California corporations with their
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
principal places of business in that state. If any relationship exists between the
Ramoses and Honda, it is centered in Mexico, where Mr. Ramos purchased and
operated the used ATV. BSC has its place of incorporation and principal place of
business in Texas. James’s domicile or residence is Texas. Because of the Ramoses’
allegations against BSC and James, a relationship between those parties was
centered in Texas. With the exception of stream of commerce, the contacts
concerning BSC and James became irrelevant when the case against them was
struck”
In the present case, Alonso, Patricia, Johanna and Cirila were residents of California.
Margarita and Luisa were residents of Mexico. Cooper is a U.S. corporation with its principal
offices in Ohio. Cooper conducts its developmental testing in Texas and sells its products in
Texas and California. The relationship between Alonso, Patricia, as well as Johanna, Cirila,
Jesus, Cynthia and Lisette as members of their immediate household, was centered in California
where the subject tire was purchased, warranted and serviced. Based on the allegations of
defective design, manufacture and marketing/warnings in this case, the relationship, if any,
between Cooper and the remaining parties is centered in California where the product was sold
into the stream of commerce.
“From the above contacts, clearly there is a significant relationship with two
countries and two states, Mexico, Japan, Texas and California. However, only the
laws of Mexico and Texas are at issue. We must, thus, consider the policy factors set
forth in section 6 of the Restatement as they relate to contacts with Mexico and
Texas.
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
By virtue of the contacts on this case, this case has a significant relationship with
California, Texas and Mexico.
2. Applying the Contacts to Section 6 Policy Factors
We must analyze section 145 factual contacts in light of their impact upon policy
factors set out in section 6 of the Restatement. Gutierrez, 583 S.W. 2d at 319.
Comment e to section 6 pronounces that “if the purposes sought to be achieved by
the local statute or common law rule would be furthered by its application to out of
state facts this is a weighty reason why such application should be made:
restatement (Second) of Conflict of Laws section 6 cmt (1971) This comment speaks
to considerations (b) and (e), the relevant policies of the forum and the basic policies
underlying the particular field of law. Texas courts have emphasized these two
factors in determining which forum has the “most significant relationship” to the
claim at issue. See e.g Duncan v Cessna Aircraft Co. 665 S.W. 2d 414, 421 (Tex.
1984); Vizcarra v Roldan, 925 S.W.2s 89, 91 (Tex. App—El Paso 1996, no writ)
a. The Needs of the Interstate and International Systems
Texas and Mexico want commerce between the two places, especially along the
border. The fact that a defective product entered the stream of commerce in Texas
and eventually ended up in Mexico does have an impact on commerce between
Texas and Mexico. Although Mr. Ramos did not buy the ATV from a Texas
dealership, nor could he have, as that particular ATV is no longer distributed in the
United States, and the ATV was purchased second hand from a friend in Mexico the
C\\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
ATV was initially sold to a consumer in Texas. Although the exact chain of
ownership is undetermined, the ATV was eventually sold in Texas to someone in
Mexico or someone who be taking the ATV into Mexico, and Texas and Mexico
need their citizens to be protected and treated fairly when visiting or conducting
business abroad. This policy factor, therefore, has important significance in
determining which law to apply.
In the present case, while it is true that California and Texas want commerce with
Mexico, the product at issue, a tire made by Cooper had a direct path to the Plaintiffs via a sale to
them in California. There is no ambiguity about the chain of sale, use and warranty concerning
the product. Therefore, there is no implication of an affect on interstate commerce in this case
other than the one expressed by California in wanting to hold manufacturers accountable for
defective products sold within its borders.
“pb. Relevant Policies of Texas as the Forum State
By adopting strict products liability laws, Texas has expressed a clear interest in
protecting its consumers and in regulating the quality of products in its stream of
commerce. Texas has a strong policy interest in controlling corporate action in areas
such as manufacture of defective products. See Ford Motor Co. V Aguiniga, 9 S.W.
3d 252, 260-61 9Tex. App-San Antonio 199, pet. Denied) (citing Vizcarra, 925 S.W.
2d at 91) Simply, Texas maintains an interest “in protecting its citizens from, and
compensating them for, injuries resulting from defective products” Aguiniga, 9 S.W.
3d at 261. Although the ATV eventually ended up in Mexico, the key factor is that
the ATV was originally placed in the stream of commerce in Texas and Texas has a
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
strong interest in regulating conduct of corporations that have business operations
in the state. See Dow Chemical Co. v. Alfaro, 786 S.W. 2d 674 (Tex. 1990) “The
expansive Texas system of tort liability for defective products serves as an incentive
to encourage safer design and to induce corporations to control more carefully their
manufacturing processes” Mitchell v Lone Star Ammunition, Inc. 913 F. 2d 242-250
(5" Cir. 1990) This, this Texas interest would be furthered by application of Texas
law.”
As is the case in Texas, California, by adopting strict products liability laws, has
expressed a clear interest in protecting its consumers and in regulating the quality of products in
its stream of commerce. California thus has a strong policy interest in controlling corporate _
action in areas such as manufacture of defective products and protecting its citizens from, and
compensating them for, injuries resulting from defective products. The key factor is that the
subject tire was deliberately introduced by Cooper into the stream of commerce in California and
purchased by Plaintiffs. California’s interest is served in regulating Cooper’s conduct in selling
its products in the state and in protecting Plaintiffs, who purchased and relied on the product, by
compensating them for injuries resulting from the defective tire.
“e, Relevant Policies and Interest of Mexico
The attorney’s affidavit attached to Honda’s motion to apply the laws of Mexico
reflects that although Mexico has not adopted strict products liability for defective
products, injured persons may recover if they can prove a manufacturers
negligence. In wrongful death cases, Mexican law balances the need to provide relief
to its citizens with the country’s need to stimulate commerce by limiting plaintiff's
C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
recovery. Under Mexican law, a plaintiff in a case such as this can recover
compensation for 3000 days of salary, four months of salary for funeral expenses,
and any medical expenses incurred before death. Inexcusable negligence may bar a
plaintiff’s recovery, and relevant Mexican law has been interpreted to provide for
comparative responsibility.
While Mexico has a great interest in seeing its citizens, theRamoses, compensated
for the loss of their son by defendants who continue to market the particular ATV at
issue within the country, the particular instance involves the competing interest of
Texas, where the particular ATV entered the stream of commerce. While we do not
deny that Mexico has an interest in regulating the use of ATVs within its
boundaries, the forum that introduced this particular ATV in the stream of
commerce, Texas, maintains an appreciable interest in applying its law to this case.
This factor, therefore, weighs in favor of applying Texas law.”
In the present case, the subject tire was notmarketed, designed or sold in Mexico.
Mexico’s interest, if any, in regulating the conduct of Cooper in this regard is not implicated.
The key factor in weighing the various interest should center, as it did in Sanchez, on where the
particular product entered the stream of commerce. In this case, itwas California., and therefore,
(
this factor should weigh in favor of applying California law.
“d. The Remaining Factors
There are no justified expectations for which law applies. Honda could expect to be
subject to the laws of any jurisdiction in which an accident occurs involving its
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
products or where it does business. The Ramoses were not aware until after the
accident that the ATV was originally placed in the stream of commerce in Texas. As
for the various policies underlying negligence and product liability law, they were
discussed above. The Ramoses argue that Texas courts will find it easier to
determine and apply its own strict products liability laws. They also argue that
applying Texas law would provide certainty, predictability and uniformity in result.
However, the issue is not which laws is easier to apply, but whether Mexican law
can be determined and applied with ease. After reading the translations of the
relevant laws, we conclude the trial court and attorneys can employ the Mexican law
with ease. Mexican law may differ from Texas law, but nothing indicates it is more
complicated to apply. Nor does the difference mean the parties will be confronted
with results under Mexican negligence laws that are uncertain, unpredictable or
that will not be uniform. We conclude the factors discussed in this section are of
little consequence in our determination of which laws to apply.
After considering the contacts in relation to the policy factor, we hold the trial court
did not err in refusing to conduct the trial under the laws of Mexico”
In the present case, the laws of California, Texas and Mexico can all be applied to the
facts of this case. Mexico does not offer a strict products liability scheme and its laws rely on
general negligence theories. The laws of California are nearly identical to those of Texas with
regards to its strict product liability statutes and the damages recoverable for the harm caused by
them. Therefore, this does not present an issue that should be of consequence, one way or the
other, in the court’s choice of law determination.
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
The only substantial difference between the facts surrounding Sanchez case and the
present case, both in terms of the product and the claimants, the present case has a much stronger
nexus to the California on the whole than Mexico. In Sanchez, the decedent and his parents were
Mexican, the accident occurred in Mexico, they purchased the product in Mexico. By contrast,
the present case involves decedents who are mostly from California, who purchased and
primarily used the subject tire product in California. The common factual element in both of
these cases is that the products were both introduced in the stream of commerce in jurisdictions
with well defined public policies regarding the duty, rights and remedies available for the harm
caused by defective products. California and Texas both share this policy interest. Mexico,
which does not have any products liability statute and does not even provide a forum unless the
rights of a domestic defendant are implicated, expresses very little to no interest in regulating the
conduct of product makers, especially foreign ones.
V. COOPER’S MISPLACED RELIANCE ON FIGUEROA V. WILLIAMS
For its proposition that Mexican law should be applied in to this case, Cooper’s relies
heavily on an bench opinion issued in Figueroa v Williams, 2010 WL 5387599, (U.S. District
Court for S.D. of Texas, Victoria Division) The underlying facts in Figueroa and the underlying
policy concerns driving the court’s decision in that case have very little do so with those
discussed in Aguiniga, Sanchez and Hurtado. To the extent there are similarities in the
underlying facts and the court’s decision, they actually serves to confirm Plaintiffs’ position that
Mexico has no interest in this litigation. The following is a detailed discussion of the facts and
holding in Figueroa, with contrast and comparisons with the present case:
“I, Factual and Procedural History
C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
This action stems from a failed alien smuggling operation in which Defendant
Tyrone Williams (“Williams”), a truck driver, was paid to transport illegal aliens-all
citizens of Mexico and Honduras from Harlingen, Texas through a border
checkpoint to Houston, Texas in his trailer. Williams did not transport the aliens to
Houston, however, but instead abandoned the trailer at a gas station in Victoria,
Texas, Of the 74 aliens in the back of the trailer, 19 died of dehydration,
hyperthermia, suffocation ad/or mechanical asphyxia, and dozens more were
injured.
Plaintiffs in this action are families of the decedent aliens and are residents and
citizens of Mexico and Honduras. The movant, Great Dane, is a Delaware limited
liability partnership in the business of manufacturing trailers for the transportation
of dry goods and food products and allegedly manufactured the trailer that was
ultimately used for the failed smuggling operation. Jecseeseee) Salem Truck is a New York
corporation and allegedly owned the trailer used to transport the decedents”
At the outset, the facts in Figueroa are distinguishable from the present case. All of the
victims were from Mexico or Honduras with no ties whatsoever to Texas. Similarly, the two
defendants, a trailer manufacturer and its owner, had no demonstrable ties to Texas. Moreover,
the product at issue, cargo trailer designed to transport dry good and food products was being
used for an illegal human smuggling operation.
By contrast, the present case involves decedents who are primarily from California and a
C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd
defendant who actively marketed and sold the product at issue in California. Moreover, the
product was being used by its purchasers in the lawful manner in which it was intended to be
used by the manufacturer. In terms of the parties and connections with the U.S., these two cases
have very little in common.
“J. Section 145 Factors
The relevant Section 145 factors in this case are as follows: All Plaintiffs and
decedents li
Preview
LISETTE RAMIREZ CAUSE NO. 2011-01896 IN THE DISTRICT COURT fay 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, FILED Deceased, and JOHANNA ARACELI GARCIA RAMIREZ, Deceased Chris Daniel District Clerk JORGE ROSAS GARCIA on Behalf of all the Wrongful Death MAY 29 2012 Beneficiaries of MARGARITA Time: Farris County, Texas. GARCIA SANCHEZ, Deceased, 8y¥ sag 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 8 Beneficiaries of CIRILA LOPEZ § GARCIA Deceased, Plaintiffs Bo JOSE RAMIREZ ALONSO, GVSoe JORGE RAMIREZ LOPEZ, one Sosa LUCIA RAMIREZ LOPEZ, CRISTINA a 2740 ALVAREZ, JORGE ROSAS sar =xrzo GONZALEZ, DEOLINDA ROSAS ce Om sae ma GARCIA, MOISES DE JESUS ROSAS GARCIA, DIOVENI MARGARITA 2 ROSAS GARCIA, ALFREDO NAVARRO, ALFREDO NAVARRO GARCIA, MARICELA NAVARRO GARCIA and GABRIELA NAVARRO GARCIA Intervenors vs. COOPER TIRE & RUBBER CO. Defendant 157th JUDICIAL DISTRICT C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd RECORDER'S MEMORANDUM Jhis instrument is of poor quality At the time of imaging PLAINTIFFS’ & INTERVENORS’ MOTION TO ENFORCE TRCP RULE11 SJURISDICTION/VENUE AGREEMENT, AND IN THE ALTERNATIVE, MOTION TO TAKE JUDICIAL NOTICE AND APPLY THE LAWS OF THE STATE OF CALIFORNIA COME NOW, ALL PLAINTIFFS & INTERVENORS NAMED IN THE ABOVE CAPTIONED CASE, and file this Motion to Enforce a TRCP Rule 11 Agreement on Jurisdiction/Venue, and in the alternative, Motion to take Judicial Notice and Apply the Laws of the State of California, and in support of same would show the following: I. BACKGROUND FACTS a. The Accident This case arises from a single vehicle accident that occurred on January 4, 2010 in Jalisco, Mexico. While on a family vacation to Mexico, the Plaintiffs were passengers in a 1999 Chevrolet Suburban equipped with tires made by Cooper Tire & Rubber Company (“Cooper). While traveling at highway speed, the left rear tire of the Suburban sustained a catastrophic tread separation. This tread separation caused a loss of vehicle control by the driver and subsequent violent rollover. As a result of this accident, the following six(6) persons were killed: Patrica Garcia de Ramirez (“Patricia”), Alonso Ramirez (“Alonso”), Johanna Ramirez (“Johanna”), Cirila Lopez (“Cirila”), Margarita Sanchez Garcia, (“Margarita”) and Maria Luisa Ramirez Garcia (“Luisa”). The remaining passengers, which include Plaintiffs Jesus Ramirez (“Jesus”) and Cynthia Ramirez (“Cynthia”), were injured. 6. The Tire & Vehicle The 1999 Chevrolet Suburban was registered, maintained, and primarily operated in the State of California by Alonso and Patricia, who were husband and wife. (Ex 1. Vehicle Title-Attached) C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd The subject tire, a Cooper Discoverer HT, and its 3 matching companion tires, were purchased new by Patricia at a Big O Tire & Service Center in Yuba City, California. These tires were subsequently inspected, serviced, rotated and balanced at the same Big O Tire store in California. ( Ex. 2, Tire Purchase & Service Invoices-Attached) There is no dispute that the subject tire was designed, manufactured, marketed and warranted by Cooper Tire and Rubber Company (“Cooper”) in the United States. Therefore, the entirety of the relationship between the Plaintiffs and Cooper originates and was exclusively centered in the State of California. ¢. Residence and Domicile of the Parties Cooper is an Ohio corporation, which sells its products throughout the United States, including California and Texas. Cooper maintains owns and operates its test track facilities in Texas. Cooper manufactured the subject tire at its Texarkana plant. Cooper also sold and marketed the subject tire in California directly to the Plaintiffs. Alonso, Patricia and Johanna, all U.S. citizens, resided in the State of California at the time of their deaths. ( Ex. 3, U.S. Passports and Identifications-Attached) Alonso and Patricia were both gainfully employed in California. ( Ex. 4, California State Income Tax 2008-Attached) Jesus and Cynthia, who are surviving children of Alonso and Patricia, are U.S. citizens and residents of California. (Ex. 5, U.S. Passports-Attached) Lisette Ramirez (‘Lisette”), the daughter of Patricia, is a U.S. citizen and also a resident of California. (Ex. 5, U.S. Passport-Attached) Cirila was a U.S. Permanent Resident who resided with her daughter Patricia in California at the time of her death. (Ex. 6, U.S. Permanent Resident Card & CA Driver’s Lic.-Attached) Her husband, Jose Ramirez Alonso (”Jose”), is also U.S. permanent resident. CAUsers\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd Margarita and Luisa were citizens of Jalisco, Mexico at the time they died. All of their wrongful death beneficiaries reside in Mexico. d. Procedural History Plaintiffs originally brought their claims against Cooper and its wholly owned subsidiary, Cooper Tire & Vehicle Test Center, Inc. (CTVTC) in Frio County Texas. CTVTC is a Texas corporation located and headquartered in Frio County. CTVTC is where Cooper performs is developmental testing for its various tire products and where the Plaintiffs originally chose to bring their action arising from the negligence in the testing and post productionmonitoring of the subject model tire. With its answer, Cooper and CTVTC filed a motion to transfer venue to Dallas County, Texas. Before a ruling by the Frio District court on the venue motion, the parties agreed and signed an agreement whereby the case would be transferred to Harris County, Texas. Plaintiffs agreed to non-suit CTVTC from the lawsuit and Cooper specifically agreed that the District Courts of Harris County Texas would have exclusive jurisdiction and venue over this litigation. (Ex. 7, Rule 11 Agreement re: Venue/Jurisdiction-Attached) Cooper’s motion to apply the law of Mexico is a reneging of that agreement and Plaintiffs by this motion seek enforcement of the agreement by an order that Texas law applies to the substantive issues in this case. Pleading in the alternative, Plaintiffs & Intervenors, herein file their response Cooper Motion to Apply Mexican law and their own counter motion to apply the law of California to this case. Il. CHOICE OF LAW IN TEXAS In Texas, the “most significant relationship” test governs all conflicts of law cases sounding in tort. Gutierrez v Collins, 583 S.W.2d 312, 318 (Tex. 1979). In wrongful death actions, the C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd legislature has admonished the courts to apply the rules of substantive law “that are appropriate under the facts of the case” TX CPRC 71.031(c) (Vernon 1997). The Texas Supreme Court has interpreted 71.031(c) to incorporate the “most significant relationship” test. Total Oil Field Serv. Inc. 711 S.W.2d 237, 239 (Tex. 1986). The “most significant relationship” test is outlined by Sections 6 and 145 of the Restatement Second of Conflicts. Gutierrez, 583 S.W. 2d at 318. Section 6 sets out the following general choice of law principals: 1 Accourt, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law; When there is no such directive, the factors relevant to the choice of the applicable rule of law include: (a) The needs of interstate and international systems; (b) The relevant policies of the forum; ©) The relevant policies of other interested states and the relative interest of those states in the determination of the particular issue; (a) The protection of justified expectations; () The basic policies underlying the particular field of law; @ Certainty, predictability and uniformity of result; and (g) Ease in the determination and application of the law to be applied. When applying the Section 6 principals to a tort case, Section 145(2) of the Restatement states that the court must consider the following contacts: @) The place where the injury occurred; C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd (b) The place where the conduct causing the injury occurred; (©) The domicile, the residence, nationality, place of incorporation, and place of business of the parties; (@) The place where the relationship, if any, between the parties is centered. Jd at 319. Application of the “most significant relationship” test does not turn on the number of contacts listed in section 145, but rather on the qualitative nature of those contacts as affected by the policy factors found in section 6. /d. The court must determine the relationship between the contacts and the policy factors on a case by case basis. Id. V.CALIFORNIA PRODUCTS LIABILITY Plaintiffs and Intervenors ask the court to take judicial notice of California’s strict products liability doctrine. California was the first state in the nation to adopt the doctrine of imposing strict liability for defective products. The doctrine, as originally stated by California Supreme Court, reads as follows: "A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. . . . The purpose of such liability is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves." (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62-63 [27 Cal.Rptr. 697, 377 P.2d 897].) "A manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560 [34 Cal.Rptr.2d 607, 822 P.2d 298], internal citations omitted.) C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\P leadings\ChoiceofLawCounterMotion.wpd Vv. CHOICE OF LAW RULES APPLIED TO U.S.-MEXICO CASES In Texas, the “most significant relationship” test has been applied to cases, like the present one, that involve an accident in Mexico; a product made and sold in the United States by a domestic manufacturer; and which results in harm to claimants from both countries. Two Texas cases in particular, discussed in detail below, have direct application to the case at bar. They are Ford Motor Co. v. Anguinia, 9 S.W.3d 252, 262(Tex. App.—San Antonio 1999, pet. denied); and Sanchez v Brownsville Sports Center Inc. et al, 51 S.W.3d 643, 671 (Tex.App.— Corpus Christi 2001, pet. granted, judgm't vacated w.r.m. A third decision, issue by the California Supreme Court, discusses why the application of the Mexican law on damages to any part of the present case is not appropriate to the circumstances and would circumvents a very important public policy interest shared by California and Texas. Hurtado v Superior Court, 11 Cal. 3d 574 (Cal. 1974) a. Ford v Aguiniga, 9 S.W.3d 252, 262(Tex. App.San Antonio 1999, pet. denied); Anguinia is a case with 145 factors substantially similar to those in the present case. How the Aguinina court analyzed the choice of law issue is instructive as to how the court should decide the same issue in the present case. For the court’s convenience, the following is the specific excerpt from the Aguiniga decision dealing directly with the choice of law issues (bold), together with a tracking comparison to the facts in the present case: “Choice of Law In its fifth issue, Ford contends that the claims in this case should have been governed by the substantive law of Mexico. Ford bases this assertion on the facts of the case: a vehicle, purchased in Louisiana, crashed off of a Mexican highway while C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd it carried eight Mexican nationals who were subsequently hospitalized in a Mexican hospital. The accident was then investigated by Mexican authorities.” In the present case, Cooper contends that the claims in this case should be governed by the substantive law of Mexico. Cooper bases its assertion on the fact that a tire, purchased in California, failed and caused a crash on a Mexican Highway while it carried residents of California and Mexico. The accident was then investigated by Mexican authorities. “In Gutierrez v. Collins, 583 S.W.2d 312, 319 (Tex. 1979), Texas adopted the "most significant relationship" test to determine the choice of law as espoused under sections 6 and 145 of the Restatement (Second) of Conflicts of Law(5). Under this test, we consider the following factual matters: (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation and place of business of the parties; (4) the place where the relationship, if any, between the parties is centered. Id.; Restatement (Second) of Conflicts of Laws 145 (1971). The number of contacts is not determinative, rather the qualitative nature of those particular contacts. Duncan, 655 S.W.2d at 421.” In the present case, Gutierrez and application of Sections 6 and 145 of the Restatement continue to be controlling on choice of law issues. “Initially, we identify the conflict of law which would necessitate the trial court to decide a choice of law issue. Here, Ford asserts that the amount of damages which plaintiffs could have recovered under Mexican law would have been limited. In C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd Texas, those same damages would not have been limited. Next, we consider the relevant contacts, as they are determinative in identifying the governmental interests at stake. See Duncan, 665 S.W.2d at 421(6). In the présent case, Cooper asserts that amount plaintiffs and intervenors can recover under Mexican law would be limited. By its experts’ testimony the recovery would be well under twenty thousand ($20,000.00) dollars per decedent. Conversely, in Texas and California, those same damages would not be limited. Therefore, the court must then consider the relevant contacts, as they are determinative in identifying the governmental interest at stake. “The following undisputed state contacts exist: thirteen Texas residents were plaintiffs below; Ford was a United States corporation conducting business in Texas; the van was inspected, licensed, registered, and primarily operated in Texas; and, the van was owned by Texas residents. Contacts with Mexico include the following: the accident occurred in Mexico; eight of the eleven people killed were Mexican nationals; the accident victims were hospitalized in Mexico; and Mexican authorities investigated the accident. Ford adds that while it may conduct business in Texas, the van in the present case was manufactured in Michigan and sold in Louisiana.” In the present case, four (4) out of the six (6) persons killed in the accident were residents of California. Two of the surviving passengers, Jesus and Cynthia, are also residents of California and received medical treatment in California. Cooper is a United States corporation -conducting business in Texas and California. The vehicle and tire were inspected, registered, sold, owned and maintained in California to and by California residents. Contacts with Mexico C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd include: 7 of the 13 vehicle passengers were Mexican residents. Some of the accident survivors received treatment in Mexico and Mexican authorities investigated the accident. “Finally, we consider the governmental interests asserted by the parties. Ford contends that Mexico maintains a strong governmental interest in the operation of motor vehicles on its highways. Appellees, on the other hand, maintain that Texas has a strong interest in protecting its citizens, whether United States citizens or residents, from injuries resulting from defective products.” In the present case, Cooper contends that Mexico maintains a strong governmental interest in the operation of motor vehicles on its highways. Plaintiffs, on the other hand, maintain that California has a strong interest in protecting its residents from injuries resulting from defective products. “As a general rule, in matters of a tort or personal injury, the situs of the injury determines the rights and liabilities of the parties. See Restatement (Second) Conflict of Laws 146 (1971); James P. George, Conflicts of Law: A Guide for Texas Attorneys, 25 Tex. Tech L. Rev. 833, 848-49. However, this rule of law reflects the old mechanical rules of lex locus delecti and lex locus contractus. George, 25 Tex. Tech L. Rev. at 849. The former was rejected by the Texas Supreme Court in Gutierrez. And thus, we too do not consider it dispositive of the choice of law issue. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1413-14 (5th Cir.), cert denied, 516 U.S. 865 (1995).” In the present case, the fact that the tire happen to fail while in Mexico is merely C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd fortuitous and not dispositive of the choice of law issue. “Our review of this case established that Mexico has no interest in this litigation. Ford is a United States corporation, not a Mexican corporation. Defendant Marta Velazquez was a Texas resident and United States citizen. This fact establishes that neither defendant is a Mexican resident, citizen, nor business. Therefore, there is not a Mexican defendant who would be protected by the limitations in damages under Mexican law. See also Baird v. Bell Helicopter Textron, 491 F. Supp. 1129, 1141 (N.D. Tex. 1980) (stating that British Columbia's interest in protecting its citizens from excess liability is not implicated if defendant is a Texan). In the present case, the court should reach the same conclusion that Mexico has no interest in this litigation. Cooper is a U.S. corporation, not a Mexican corporation. The facts establish that there is no Mexican defendant who would be protected by the limitation in damages under Mexican law. “While purchased in Louisiana, the Aguiniga van was inspected and primarily operated in Texas. The majority of the individuals killed in the accident were Texas residents. See Gutierrez, 583 S.W.2d at 319 (stating that when two residents of the forum ‘ are involved in an accident in another state, the law of the forum applies). In addition, the majority of claimants suing are Texas residents.” In the present case, the tire was purchased, inspected, serviced and primarily operated in California. Also, the majority of the persons killed in the accident were residents of California. “Given these contacts, the only interest which exists is that of Texas. That interest is C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd this state's strong policy in controlling corporate action in the manufacture of defective products. See Vizcarra v. Holdan, 925 S.W.2d 89, 91 (Tex. App.—El Paso 1996, no pet.) Simply, Texas maintains an interest "in protecting its citizens from, and compensating them for, injuries resulting from defective products." Baird, 491 F. Supp. at 1150-51. Thus, Texas has an interest in protecting consumers from defective products such as the relays involved in the present case. Ultimately, given Texas's interest and Mexico's lack of the same, there would appear to be a "false conflict" between U.S. and Mexico governmental interests which necessitates that Texas law apply. See Duncan, 665 S.W.2d at 422. Accordingly, we overrule Ford's fifth issue.” Given the contacts present in this case, the only interest are those of Texas as the forum agreed to by the parties, and California which both have a strong policy in controlling corporate action in the manufacture of defective products. Texas and California maintain a strong interest protecting its citizens from, and compensating them for, injuries resulting from defective products. Thus, Texas and California have an interest in protecting consumers from the defective tire involved in this case. Given Texas and California’s interest, and Mexico’s lack of same, there would appear to be a ‘false conflict ‘ between the U.S. states of Texas & California and Mexico governmental interest that would necessitate that the unrestricted remedies available under California and Texas law apply to this case. b. Hurtado v Superior Court, 11 Cal. 3d 574 (Cal. 1974) The same “false conflict” reasoning relied upon by the Aguiniga court was applied by California’s Supreme Court when it decided Hurtado v Superior Court. Hurtado was an action C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd for wrongful death arising from an accident that occurred in Sacramento County, California. The decedent was a resident of Mexico visiting his brother in California at the time of the accident. The defendants were from California. The defendants moved to have Mexican damages law apply to the claims of the deceased. These defendants made the same argument Cooper is making in the present case that Mexican residents should have their damages assessed by the law of there residence regardless of who caused the harm and 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 law” problem. It observed that the laws of California and Mexico were not identical. As in the present case, Mexico limited recovery in wrongful death actions to a few thousand dollars. California law provided that heirs of the decedent are entitled to recover such sum, as under the circumstances of the case, will be just compensation for the pecuniary loss which each heir of the decedent has suffered by reason of the death of the decedent. As in Aguiniga, the Hurtado court held that although two potentially concerned states had different laws, there would be no problem in choosing the applicable rule of law where only one of the states has an interest in having its law applied. In other words, when one of two states in a case has a legitimate interest in the application of its law and policy and the other has none, there is no real problem; clearly the law of the interested state should be applied. The court observed that the interest of a 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 the imposition of excessive financial burdens on defendants is primarily local. C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd A state, by enacting a limitation on damages, is seeking to protect its residents from excessive financial burdens. Such a policy does not reflect a preference that widows and orphans should be denied full recovery. The court specifically help that since it is the plaintiffs and not the defendants who were Mexican residents, Mexico had no interest in applying its limitation on damages. Since there were no Mexican defendants to protect, Mexico had no interest in denying its own residents full recovery for injuries caused by non-Mexicans. The Hurtado Court went on further to add, that it is manifest that one of the primary reasons for a state creating a cause of action on the heirs for the wrongful death of a decedent is to deter the kind of conduct within its borders which wrongfully takes life. In the present case, that policy is effectuated by holding Cooper to account for designing, manufacturing, marketing and then selling a defective product into California’s stream of commerce. The Hurtado court went in to say that, on the other hand, a state which prescribes a limitation on the measure of damages modifies the sanction imposed by a counter veiling concern to protect local defendants against 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-resident defendants or in denying full recovery to its resident plaintiffs, then the court appropriately applied California law. The same reasoning can be applied regarding the present case. Since Cooper is a U.S. company accused of wrongful conduct occurring in California, it cannot be said that Mexico has any interest in protecting Cooper from excessive financial burdens imposed by California’s clearly expressed interest in deterring such conduct in allowing for full compensation to the widows and orphans in this case. C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd Cc. Sanchez v Brownsville Sports Center Inc. et al, 51 S.W.3d 643, 671 (Tex.App.— Corpus Christi 2001, pet. granted, judgm't vacated w.r.m. Sanchez is another case involving an accident in Mexico; arising from a defective product made by a U.S. manufacturer and originally sold in the U.S. This case is distinguishable from the case at bar only to the extent that all of the Plaintiffs were Mexican nationals. Regardless of that fact, as will be discussed below, the court still concluded that Mexican substantive law on damages should not be applied under a 145 choice of law analysis. The following is the direct excerpt from that decision in bold type followed by comparisons to those in the present case: “At the outset, we apply the factual matters stated under 145(2). The evidence showed that Polito died in Matamoros, Mexico. The alleged wrongful conduct of Honda that caused the death occurred in Japan, where the ATV was designed and manufactured, and in Texas, where the ATV was first placed in the stream of commerce. The alleged negligence conduct of the Ramoses occurred in Mexico.” In the present case, Alonso, Patricia, Johanna, Cirila, Luisa and Margarita died in Mexico. The alleged wrongful conduct by Cooper that caused the death occurred in the United States where the tire was designed, manufactured and tested, and in California, where the tire was first placed in the stream of commerce. “Polito and his family are domiciled in or residents of Mexico. Honda Motor Co. Ltd. And Honda R&D Co. Ltd. Are Japanese corporations and their principal place of business is in Japan. Honda R&D North America, Inc., Honda North America, Inc. and American Honda Motor Co., Inc. Are California corporations with their C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd principal places of business in that state. If any relationship exists between the Ramoses and Honda, it is centered in Mexico, where Mr. Ramos purchased and operated the used ATV. BSC has its place of incorporation and principal place of business in Texas. James’s domicile or residence is Texas. Because of the Ramoses’ allegations against BSC and James, a relationship between those parties was centered in Texas. With the exception of stream of commerce, the contacts concerning BSC and James became irrelevant when the case against them was struck” In the present case, Alonso, Patricia, Johanna and Cirila were residents of California. Margarita and Luisa were residents of Mexico. Cooper is a U.S. corporation with its principal offices in Ohio. Cooper conducts its developmental testing in Texas and sells its products in Texas and California. The relationship between Alonso, Patricia, as well as Johanna, Cirila, Jesus, Cynthia and Lisette as members of their immediate household, was centered in California where the subject tire was purchased, warranted and serviced. Based on the allegations of defective design, manufacture and marketing/warnings in this case, the relationship, if any, between Cooper and the remaining parties is centered in California where the product was sold into the stream of commerce. “From the above contacts, clearly there is a significant relationship with two countries and two states, Mexico, Japan, Texas and California. However, only the laws of Mexico and Texas are at issue. We must, thus, consider the policy factors set forth in section 6 of the Restatement as they relate to contacts with Mexico and Texas. C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd By virtue of the contacts on this case, this case has a significant relationship with California, Texas and Mexico. 2. Applying the Contacts to Section 6 Policy Factors We must analyze section 145 factual contacts in light of their impact upon policy factors set out in section 6 of the Restatement. Gutierrez, 583 S.W. 2d at 319. Comment e to section 6 pronounces that “if the purposes sought to be achieved by the local statute or common law rule would be furthered by its application to out of state facts this is a weighty reason why such application should be made: restatement (Second) of Conflict of Laws section 6 cmt (1971) This comment speaks to considerations (b) and (e), the relevant policies of the forum and the basic policies underlying the particular field of law. Texas courts have emphasized these two factors in determining which forum has the “most significant relationship” to the claim at issue. See e.g Duncan v Cessna Aircraft Co. 665 S.W. 2d 414, 421 (Tex. 1984); Vizcarra v Roldan, 925 S.W.2s 89, 91 (Tex. App—El Paso 1996, no writ) a. The Needs of the Interstate and International Systems Texas and Mexico want commerce between the two places, especially along the border. The fact that a defective product entered the stream of commerce in Texas and eventually ended up in Mexico does have an impact on commerce between Texas and Mexico. Although Mr. Ramos did not buy the ATV from a Texas dealership, nor could he have, as that particular ATV is no longer distributed in the United States, and the ATV was purchased second hand from a friend in Mexico the C\\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd ATV was initially sold to a consumer in Texas. Although the exact chain of ownership is undetermined, the ATV was eventually sold in Texas to someone in Mexico or someone who be taking the ATV into Mexico, and Texas and Mexico need their citizens to be protected and treated fairly when visiting or conducting business abroad. This policy factor, therefore, has important significance in determining which law to apply. In the present case, while it is true that California and Texas want commerce with Mexico, the product at issue, a tire made by Cooper had a direct path to the Plaintiffs via a sale to them in California. There is no ambiguity about the chain of sale, use and warranty concerning the product. Therefore, there is no implication of an affect on interstate commerce in this case other than the one expressed by California in wanting to hold manufacturers accountable for defective products sold within its borders. “pb. Relevant Policies of Texas as the Forum State By adopting strict products liability laws, Texas has expressed a clear interest in protecting its consumers and in regulating the quality of products in its stream of commerce. Texas has a strong policy interest in controlling corporate action in areas such as manufacture of defective products. See Ford Motor Co. V Aguiniga, 9 S.W. 3d 252, 260-61 9Tex. App-San Antonio 199, pet. Denied) (citing Vizcarra, 925 S.W. 2d at 91) Simply, Texas maintains an interest “in protecting its citizens from, and compensating them for, injuries resulting from defective products” Aguiniga, 9 S.W. 3d at 261. Although the ATV eventually ended up in Mexico, the key factor is that the ATV was originally placed in the stream of commerce in Texas and Texas has a C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd strong interest in regulating conduct of corporations that have business operations in the state. See Dow Chemical Co. v. Alfaro, 786 S.W. 2d 674 (Tex. 1990) “The expansive Texas system of tort liability for defective products serves as an incentive to encourage safer design and to induce corporations to control more carefully their manufacturing processes” Mitchell v Lone Star Ammunition, Inc. 913 F. 2d 242-250 (5" Cir. 1990) This, this Texas interest would be furthered by application of Texas law.” As is the case in Texas, California, by adopting strict products liability laws, has expressed a clear interest in protecting its consumers and in regulating the quality of products in its stream of commerce. California thus has a strong policy interest in controlling corporate _ action in areas such as manufacture of defective products and protecting its citizens from, and compensating them for, injuries resulting from defective products. The key factor is that the subject tire was deliberately introduced by Cooper into the stream of commerce in California and purchased by Plaintiffs. California’s interest is served in regulating Cooper’s conduct in selling its products in the state and in protecting Plaintiffs, who purchased and relied on the product, by compensating them for injuries resulting from the defective tire. “e, Relevant Policies and Interest of Mexico The attorney’s affidavit attached to Honda’s motion to apply the laws of Mexico reflects that although Mexico has not adopted strict products liability for defective products, injured persons may recover if they can prove a manufacturers negligence. In wrongful death cases, Mexican law balances the need to provide relief to its citizens with the country’s need to stimulate commerce by limiting plaintiff's C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd recovery. Under Mexican law, a plaintiff in a case such as this can recover compensation for 3000 days of salary, four months of salary for funeral expenses, and any medical expenses incurred before death. Inexcusable negligence may bar a plaintiff’s recovery, and relevant Mexican law has been interpreted to provide for comparative responsibility. While Mexico has a great interest in seeing its citizens, theRamoses, compensated for the loss of their son by defendants who continue to market the particular ATV at issue within the country, the particular instance involves the competing interest of Texas, where the particular ATV entered the stream of commerce. While we do not deny that Mexico has an interest in regulating the use of ATVs within its boundaries, the forum that introduced this particular ATV in the stream of commerce, Texas, maintains an appreciable interest in applying its law to this case. This factor, therefore, weighs in favor of applying Texas law.” In the present case, the subject tire was notmarketed, designed or sold in Mexico. Mexico’s interest, if any, in regulating the conduct of Cooper in this regard is not implicated. The key factor in weighing the various interest should center, as it did in Sanchez, on where the particular product entered the stream of commerce. In this case, itwas California., and therefore, ( this factor should weigh in favor of applying California law. “d. The Remaining Factors There are no justified expectations for which law applies. Honda could expect to be subject to the laws of any jurisdiction in which an accident occurs involving its C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd products or where it does business. The Ramoses were not aware until after the accident that the ATV was originally placed in the stream of commerce in Texas. As for the various policies underlying negligence and product liability law, they were discussed above. The Ramoses argue that Texas courts will find it easier to determine and apply its own strict products liability laws. They also argue that applying Texas law would provide certainty, predictability and uniformity in result. However, the issue is not which laws is easier to apply, but whether Mexican law can be determined and applied with ease. After reading the translations of the relevant laws, we conclude the trial court and attorneys can employ the Mexican law with ease. Mexican law may differ from Texas law, but nothing indicates it is more complicated to apply. Nor does the difference mean the parties will be confronted with results under Mexican negligence laws that are uncertain, unpredictable or that will not be uniform. We conclude the factors discussed in this section are of little consequence in our determination of which laws to apply. After considering the contacts in relation to the policy factor, we hold the trial court did not err in refusing to conduct the trial under the laws of Mexico” In the present case, the laws of California, Texas and Mexico can all be applied to the facts of this case. Mexico does not offer a strict products liability scheme and its laws rely on general negligence theories. The laws of California are nearly identical to those of Texas with regards to its strict product liability statutes and the damages recoverable for the harm caused by them. Therefore, this does not present an issue that should be of consequence, one way or the other, in the court’s choice of law determination. C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd The only substantial difference between the facts surrounding Sanchez case and the present case, both in terms of the product and the claimants, the present case has a much stronger nexus to the California on the whole than Mexico. In Sanchez, the decedent and his parents were Mexican, the accident occurred in Mexico, they purchased the product in Mexico. By contrast, the present case involves decedents who are mostly from California, who purchased and primarily used the subject tire product in California. The common factual element in both of these cases is that the products were both introduced in the stream of commerce in jurisdictions with well defined public policies regarding the duty, rights and remedies available for the harm caused by defective products. California and Texas both share this policy interest. Mexico, which does not have any products liability statute and does not even provide a forum unless the rights of a domestic defendant are implicated, expresses very little to no interest in regulating the conduct of product makers, especially foreign ones. V. COOPER’S MISPLACED RELIANCE ON FIGUEROA V. WILLIAMS For its proposition that Mexican law should be applied in to this case, Cooper’s relies heavily on an bench opinion issued in Figueroa v Williams, 2010 WL 5387599, (U.S. District Court for S.D. of Texas, Victoria Division) The underlying facts in Figueroa and the underlying policy concerns driving the court’s decision in that case have very little do so with those discussed in Aguiniga, Sanchez and Hurtado. To the extent there are similarities in the underlying facts and the court’s decision, they actually serves to confirm Plaintiffs’ position that Mexico has no interest in this litigation. The following is a detailed discussion of the facts and holding in Figueroa, with contrast and comparisons with the present case: “I, Factual and Procedural History C:\Users\Lawrence Law Firm\Documents\ActiveF iles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd This action stems from a failed alien smuggling operation in which Defendant Tyrone Williams (“Williams”), a truck driver, was paid to transport illegal aliens-all citizens of Mexico and Honduras from Harlingen, Texas through a border checkpoint to Houston, Texas in his trailer. Williams did not transport the aliens to Houston, however, but instead abandoned the trailer at a gas station in Victoria, Texas, Of the 74 aliens in the back of the trailer, 19 died of dehydration, hyperthermia, suffocation ad/or mechanical asphyxia, and dozens more were injured. Plaintiffs in this action are families of the decedent aliens and are residents and citizens of Mexico and Honduras. The movant, Great Dane, is a Delaware limited liability partnership in the business of manufacturing trailers for the transportation of dry goods and food products and allegedly manufactured the trailer that was ultimately used for the failed smuggling operation. Jecseeseee) Salem Truck is a New York corporation and allegedly owned the trailer used to transport the decedents” At the outset, the facts in Figueroa are distinguishable from the present case. All of the victims were from Mexico or Honduras with no ties whatsoever to Texas. Similarly, the two defendants, a trailer manufacturer and its owner, had no demonstrable ties to Texas. Moreover, the product at issue, cargo trailer designed to transport dry good and food products was being used for an illegal human smuggling operation. By contrast, the present case involves decedents who are primarily from California and a C:\Users\Lawrence Law Firm\Documents\ActiveFiles\RamirezCooper\Pleadings\ChoiceofLawCounterMotion.wpd defendant who actively marketed and sold the product at issue in California. Moreover, the product was being used by its purchasers in the lawful manner in which it was intended to be used by the manufacturer. In terms of the parties and connections with the U.S., these two cases have very little in common. “J. Section 145 Factors The relevant Section 145 factors in this case are as follows: All Plaintiffs and decedents li