Federal Judiciary

Motion to Transfer Product Liability Case Denied

By Michael C. Smith

Espinosa v. Graco Children's Products, Inc., 2009 WL 137526(E.D.Tex. Jan 20, 2009) (NO. 2:07-CV-517)
Judge: Chad Everingham
Holding: Motion to Transfer Venue DENIED
This is a product liability case arising out of the alleged failure of a child seat.  Plaintiffs are from Slidell, Louisiana, and were traveling from their former home in Oklahoma to Louisiana when they were involved in a collision in the Eastern District, somewhere within the Sherman Division, in which two of their family were killed.  Plaintiffs sued the manufacturer of the car, GM (which has since settled), and the manufacturer of the child restraint for product liability, and the driver of the other car (for negligence) and his mother (for negligent entrustment).  Judge Everingham went through the venue analysis pursuant to In re Volkswagen II, and noted the fact that Marshall was substantially more convenient to the plaintiffs than Sherman, as well as for the individual defendants, since the minor driver was now a college student for whom attendance at trial was substantially easier in Marshall than Sherman (his mother submitted a declaration to the effect that she wanted the case to proceed where it was more convenient for her son).  He also noted that while there were some accident investigation witnesses and documents in Sherman, the bulk of the documents and witnesses in this case were not in Sherman, and in many cases were actually out of state, eventually concluding that the defendant has not met its burden to show that Sherman was "clearly more convenient" as required by In re VW II.
I know what you're thinking - what will the Fifth Circuit do with this?  Well, in this era of mandamusing anything and everything that moves (or more precisely, things that don't move) there were actually two petitions for writs of mandamus filed regarding the motion to transfer (three if you count the reconsideration), one actually filed a week before the order even came out (perhaps taking a page from the Federal Circuit's recent cover of Let's Do The Time Warp Again in In re TS Tech).  Well, it may just be a little jump to the left in DC, but New Orleans is not interested in a step to the right (and likely not in any of the other Time Warp steps either, one would guess).  Following the filings and rulings in the two mandamii (I decided we apparently now need a Latin-ish term for multiple mandamus petitions in a case, since this is now standard practice) is like watching Olympic-level ping pong, but it appears that the day after Judge Everingham's order came out the Fifth Circuit denied the first petition.  The next day the defendant filed a motion for reconsideration of the denial of the first.  That same day the Fifth Circuit denied the reconsideration and denied the second.  Then it denied the second one again (no, seriously).  The case was set for jury selection February 2, 2008 and I understand has since settled. 

Full post as published by Eastern District of Texas Federal Court Practice on January 26, 2009 (boomark / email).