                                                            Filed: July 19, 2012

            IN THE SUPREME COURT OF THE STATE OF OREGON

JEFFREY WILLEMSEN,
as Personal Representative of the
Estate of KARLENE J. WILLEMSEN,
and JAMES WILLEMSEN,
                                                       Plaintiffs-Adverse Parties,
      v.

INVACARE CORPORATION,
a foreign corporation;
UNITED SEATING & MOBILITY,
a foreign limited liability company;
MOTION CONCEPTS, INC.,
a foreign corporation;
PERPETUAL MOTION ENTERPRISES, LTD,
a foreign corporation;
PASS & SEYMOUR, INC.,
a foreign corporation;
SIEMENS CORPORATION,
a foreign corporation;
SIEMENS INDUSTRY, INC.,
f/k/a/ Siemens Energy and Automation, Inc.,
a foreign corporation;
SUMMERS GROUP, INC.,
dba REXEL,
a foreign corporation;
and GAW ELECTRIC, INC.,
an Oregon corporation,
                                                                     Defendants,
      and

CHINA TERMINAL & ELECTRIC CORP.,
a foreign corporation;
CTE TECH CORP.,
a foreign corporation,
                                                            Defendants-Relators.


                         (CC 0902-01653; SC S059201)
      En Banc

      Original proceeding in mandamus.*

     Argued and submitted May 3, 2012, at Portland Community College, Cascade
Campus, Portland.

        Jonathan M. Hoffman, Martin Bischoff Templeton Langslet & Hoffman LLP,
Portland, argued the cause for Defendants-Relators. Joan L. Volpert, Portland, filed the
brief for Defendants-Relators. With her on the brief were Jonathan M. Hoffman and
Mary-Ann S. Rayburn.

       Kathryn H. Clarke, Portland, argued the cause and filed the brief for Adverse
Parties. With her on the brief was Jeffrey A. Bowersox.

      Gregory S. Pitcher, Williams, Kastner & Gibbs PLLC, Portland, filed the brief for
amicus curiae Product Liability Advisory Committee, Inc.

      Lisa T. Hunt, Portland, filed the brief for amicus curiae Oregon Trial Lawyers
Association.

      KISTLER, J.

      The alternative writ of mandamus is dismissed.

       *On petition for writ of mandamus from an order of Multnomah County Circuit
Court, Richard C. Baldwin, Judge.
 1                 KISTLER, J.

 2                 Defendant CTE Tech Corp. is a Taiwanese corporation that manufactures

 3   battery chargers.1 Defendant Invacare Corporation is an Ohio corporation that

 4   manufactures motorized wheelchairs. CTE agreed to supply Invacare with battery

 5   chargers built to Invacare's specifications, which Invacare then sold with its motorized

 6   wheelchairs in Oregon and the rest of the United States. Plaintiffs brought this action

 7   against CTE after their mother died in a fire allegedly caused by a defect in CTE's battery

 8   charger. CTE moved to dismiss plaintiffs' claims against it on the ground that Oregon

 9   lacks personal jurisdiction over it. CTE reasoned that due process would permit an

10   Oregon court to exercise personal jurisdiction over it only if CTE had purposefully

11   availed itself of the privilege of doing business here. In CTE's view, the fact that it sold

12   its battery chargers to Invacare in Ohio, which sold them together with its wheelchairs in

13   Oregon, was not sufficient to meet that standard.

14                 The trial court denied CTE's motion, and we denied CTE's petition for a

15   writ of mandamus directing the trial court to vacate its ruling. CTE then filed a petition

16   for certiorari with the United States Supreme Court. After the Court issued its decision in

17   J. McIntyre Machinery, Ltd. v. Nicastro, 564 US ___, 131 S Ct 2780, 180 L Ed 2d 765

18   (2011), the Court granted CTE's petition for certiorari, vacated our order, and remanded

19   the case to us for further consideration in light of Nicastro. China Terminal & Elec.

20   Corp. v. Willemsen, ___ US ___, 132 S Ct 75, 181 L Ed 2d 1 (2011). On remand, we

            1
                Defendant China Terminal & Electric Corp. is the former business name of
     CTE Tech Corp. We refer to both defendants as CTE.

                                                   1
 1   issued an alternative writ of mandamus to the trial court directing it to vacate its order

 2   denying CTE's motion to dismiss or show cause for not doing so. The trial court declined

 3   to vacate its order, and the parties have briefed the question whether, in light of Nicastro,

 4   Oregon courts may exercise personal jurisdiction over CTE. We hold that they may and

 5   accordingly dismiss the alternative writ.

 6                 Plaintiffs are Oregon residents.2 Their mother was an Oregon resident, who

 7   purchased a motorized wheelchair manufactured by Invacare. The wheelchair came with

 8   a battery charger manufactured by CTE.3 On February 1, 2008, plaintiffs' mother died in

 9   her home as a result of a fire allegedly caused by a defect in CTE's battery charger.

10   Plaintiffs brought this action against, among other defendants, Invacare and CTE. They

11   alleged that the battery charger that CTE had manufactured and that Invacare had sold

12   was a defective product. Alternatively, they alleged that CTE had been negligent in

13   failing to "adequately design, inspect, test, [and] manufacture" the battery charger.

14                 CTE moved to dismiss plaintiffs' claims against it for lack of personal

            2
                    This case arises on CTE's motion to dismiss for lack of personal
     jurisdiction. In considering the trial court's resolution of that issue, we take the facts from
     the allegations in plaintiffs' third amended complaint and the affidavits and other
     evidence that the parties have submitted. See ORCP 21 A (providing that, if a defendant
     moves to dismiss for lack of personal jurisdiction, a trial court is not limited to the
     pleadings but may consider "affidavits, declarations and other evidence" in
     "determin[ing] the existence or nonexistence of the facts supporting [that] defense"). We
     note that some of the facts necessary to determine personal jurisdiction over CTE are
     contained in documents filed under seal in the trial court. We also note that plaintiffs
     have discussed those facts, without objection, in their brief on the merits in this court.
     We discuss those same facts.
            3
                    The record is not clear whether the battery chargers are component parts of
     Invacare's motorized wheelchairs or sold together with the wheelchairs, in the same way
     that a battery charger might be sold with a cell phone.

                                                   2
 1   jurisdiction. On that issue, the record shows that CTE is a Taiwanese corporation with its

 2   principal place of business in that country and that Invacare is an Ohio corporation with

 3   its principal place of business in that state. In 2004, CTE entered into a "master supply

 4   agreement" with Invacare to provide Invacare with battery chargers manufactured to

 5   Invacare's specifications.4 CTE warranted that its battery chargers would be

 6   "manufactured, packaged, labeled and stored in accordance with all applicable federal,

 7   state and local laws, ordinances, rules and regulations * * *." CTE also agreed to certify

 8   annually that it had current certificates of insurance for "products and general liability

 9   coverage for bodily injury, personal injury and property damage in the amount of one

10   million dollars ($1,000,000) per occurrence." Finally, CTE promised to defend,

11   indemnify, and hold Invacare harmless for any "claims, losses, damages, charges, [and]

12   expenses * * * which may be made against [Invacare] or which [Invacare] may incur

13   arising out of or concerning the [battery chargers]." In connection with that promise,

14   CTE agreed to cooperate with Invacare "in the investigation of any actual or threatened

15   claim, loss, damage, charge or expense."

16                 In 2006-07, Invacare sold 1,166 motorized wheelchairs in Oregon that

17   Invacare made in Ohio.5 Of those 1,166 wheelchairs, 1,102 wheelchairs came with



            4
                   Invacare provided 3, 5, and 8 amp CTE battery chargers to customers who
     bought its motorized wheelchairs. Although the master supply agreement concerns only
     3 amp battery chargers, the parties treat the master supply agreement as if it applied to all
     three types of battery chargers, and so do we.
            5
                  It is unclear from the complaint whether Invacare itself sold its motorized
     wheelchairs in Oregon or whether it sold them through a distributor, United Seating &
     Mobility, LLC. (The complaint uses the phrase "sold and/or distributed.") As we

                                                   3
 1   battery chargers that CTE had manufactured and sold to Invacare.6 CTE received

 2   approximately $30,929 from Invacare for the battery chargers that Invacare provided to

 3   Oregon purchasers. Otherwise, CTE had no contacts with Oregon. As noted, CTE's

 4   principal place business is Taiwan. It does not maintain offices in Oregon and does not

 5   directly transact business here. It does not sell its products directly in Oregon, nor does it

 6   direct advertising material to customers in Oregon or directly solicit business here.

 7                 After considering the facts set out above, the trial court denied CTE's

 8   motion to dismiss for lack of personal jurisdiction. CTE filed a petition for a writ of

 9   mandamus with this court, which we denied. As noted, after the Court issued its decision

10   in Nicastro, it granted CTE's petition for certiorari, vacated our order, and remanded the

11   case to us for further consideration in light of Nicastro. On remand, the parties have

12   briefed the question whether, in light of the decision in Nicastro, Oregon may assert

13   personal jurisdiction over CTE. We turn to that question.

14                 The dispute in this case is narrow. CTE does not contend that Oregon's

15   long-arm statute does not reach its conduct. Cf. North Pacific v. Guarisco, 293 Or 341,

16   351-52, 356, 647 P2d 920 (1982) (holding that Oregon courts lacked personal jurisdiction

17   over out-of-state defendants to adjudicate a cause of action that did not fall within the
     _______________________
     understand CTE's argument, it does not matter whether Invacare or United Seating sold
     Invacare's wheelchairs and CTE's battery chargers in Oregon. In CTE's view, the
     dispositive facts are that it did not sell its battery chargers directly in Oregon and that it
     did not otherwise have any direct contacts here. We accordingly refer to Invacare's "sale"
     of its wheelchairs and CTE battery chargers in Oregon.
            6
                   CTE supplied 100 percent of the 3 and 5 amp battery chargers that Invacare
     provided to customers in Oregon and 73 percent of the 8 amp battery chargers that
     Invacare provided to customers in Oregon.

                                                   4
 1   reach of the then-applicable long-arm statute). Rather, CTE recognizes that ORCP 4 L

 2   provides for personal jurisdiction over out-of-state defendants "in any action where

 3   prosecution of the action against [the] defendant in this state is not inconsistent with the

 4   Constitution of this state or the Constitution of the United States." CTE argues, however,

 5   that the Due Process Clause does not permit Oregon to exercise personal jurisdiction over

 6   it when it has not purposefully availed itself of the privilege of conducting business in

 7   Oregon.

 8                 Plaintiffs, for their part, do not dispute that, under the Due Process Clause,

 9   a state may require an out-of-state defendant to appear in its courts only when the state

10   has general or specific jurisdiction over that defendant. See Goodyear Dunlop Tires

11   Operations, S.A. v. Brown, 564 US ___, 131 S Ct 2846, 2851, 180 L Ed 2d 796 (2011)

12   (discussing those bases for asserting personal jurisdiction over out-of-state defendants).

13   Plaintiffs do not contend that Oregon has general jurisdiction over CTE; that is, plaintiffs

14   do not contend that CTE's "affiliations with [Oregon] are so 'continuous and systematic'

15   as to render [CTE] essentially at home in the forum State." 131 S Ct at 2851 (describing

16   general jurisdiction); cf. Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 US 408,

17   416-18, 104 S Ct 1868, 80 L Ed 2d 404 (1984) (explaining when an out-of-state

18   corporation's "continuous and systematic general business contacts" within a state will

19   give rise to general jurisdiction).

20                 Plaintiffs rely instead on specific jurisdiction, which "depends on an

21   affiliatio[n] between the forum and the underlying controversy, principally, activity or an

22   occurrence that takes place in the forum State and is therefore subject to the State's

                                                   5
 1   regulation." See Goodyear Dunlop Tires, 131 S Ct at 2851 (explaining specific

 2   jurisdiction) (alteration in original; internal quotation marks omitted). "In contrast to

 3   general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of issues

 4   deriving from, or connected with, the very controversy that establishes jurisdiction." Id.

 5   (internal quotation marks omitted). In this case, plaintiffs argue that the sale of Invacare

 6   wheelchairs and CTE battery chargers in Oregon provides sufficient minimum contacts

 7   with this state for Oregon courts to assert specific jurisdiction over CTE for injuries that

 8   its battery chargers allegedly caused here.

 9                  On that question, we note that, if CTE had sold its battery chargers directly

10   in Oregon, there would be no dispute that Oregon could exercise personal jurisdiction

11   over CTE for injuries that those chargers allegedly caused here. The issue in this case

12   arises from the fact that CTE sold its battery chargers to Invacare in Ohio with the

13   expectation that Invacare would sell its wheelchairs together with CTE's battery chargers

14   nationwide. CTE contends that, because Invacare (and not CTE) is the one that targeted

15   Oregon, CTE has not purposefully availed itself of the privilege of doing business in

16   Oregon and, as a result, the Oregon courts may not assert jurisdiction over it. CTE

17   reasons that, under Nicastro, the mere fact that it may have expected that its battery

18   chargers might end up in Oregon is not sufficient to give Oregon courts specific

19   jurisdiction over it.

20                  As CTE notes, the issue that this case presents is similar to the issue in

21   Nicastro. In that case, a British manufacturer sold its products (metal shearing machines

22   used in the recycling industry) to an independent United States distributor, which

                                                    6
 1   marketed them throughout the United States. Nicastro, 131 S Ct at 2786 (plurality

 2   opinion). The United States distributor sold one machine to a company in New Jersey.

 3   Id.7 That machine allegedly malfunctioned and injured the plaintiff, who sued the British

 4   manufacturer in New Jersey. Id. In holding that the New Jersey courts could exercise

 5   personal jurisdiction over the British manufacturer, the New Jersey Supreme Court

 6   reasoned that the British manufacturer "knew or reasonably should have known 'that its

 7   products are distributed through a nationwide distribution system that might lead to those

 8   products being sold in any of the fifty states.'" Id. (quoting Nicastro v. McIntyre

 9   Machinery America, Ltd., 987 A2d 575, 592 (NJ 2010)). That was enough, according to

10   the New Jersey Supreme Court, to establish personal jurisdiction over the British

11   manufacturer.

12                 The Court allowed the British manufacturer's petition for certiorari and

13   reversed the state court's judgment. See Nicastro, 131 S Ct at 2791 (plurality opinion);

14   id. (Breyer, J., concurring in the judgment). The case did not produce a majority opinion

15   for the Court. However, a majority of the members of the Court agreed that the fact that

16   an out-of-state manufacturer sells its products through an independent nationwide

17   distribution system is not sufficient, without more, for a state to assert personal

18   jurisdiction over the manufacturer when only one of its products ends up in a state and

19   causes injury there. Id. at 2791 (plurality opinion); id. at 2792 (Breyer, J., concurring in

            7
                  The plurality opinion noted that up to four machines may have reached
     New Jersey. Nicastro, 131 S Ct at 2786. Justice Breyer's opinion concurring in the
     judgment stated that only one machine had reached New Jersey. Id. at 2791. For the
     reasons explained below, Justice Breyer's opinion in Nicastro is controlling.

                                                   7
 1   the judgment). Beyond that, the rationales advanced in the plurality opinion and the

 2   opinion concurring in the judgment differ.

 3                 Justice Kennedy, writing for the plurality, started from the premise that

 4   what matters for the purposes of determining a state court's authority over an out-of-state

 5   defendant "is the defendant's actions, not his expectations." Id. at 2789. In the plurality's

 6   view, the fact that it was foreseeable that a defendant's products might be distributed in

 7   one or all of the 50 states was not enough; rather, the plurality would require evidence

 8   that the out-of-state defendant had "targeted" the forum state in some way. Id. at 2788.

 9   As the plurality put it, the "question is whether a defendant has followed a course of

10   conduct directed at the society or economy existing within the jurisdiction of a given

11   sovereign, so that the sovereign has the power to subject the defendant to judgment

12   concerning that conduct." Id. at 2789. Although there was evidence that the British

13   manufacturer had targeted the United States, there was no evidence that it had targeted

14   New Jersey specifically. Id. at 2790. For that reason, the plurality would have held that

15   New Jersey lacked personal jurisdiction over the British manufacturer. Id. at 2790-91.

16                 Justice Breyer, with whom Justice Alito joined, would have decided the

17   case on a narrower ground. He reasoned that the Court's precedents stand for the

18   proposition that "a single sale of a product in a State does not constitute an adequate basis

19   for asserting jurisdiction over an out-of-state defendant, even if that defendant places his

20   goods in the stream of commerce, fully aware (and hoping) that such a sale will take

21   place." Id. at 2792 (Breyer, J., concurring in the judgment). Because the evidence did

22   not establish any connection between the British manufacturer and New Jersey other than

                                                   8
 1   the single sale achieved as a result of the independent distributor's efforts, Justice Breyer

 2   agreed with the plurality that, under the Due Process Clause, the British manufacturer did

 3   not have sufficient contacts with New Jersey for the courts of that state to exercise

 4   personal jurisdiction over it. Id. at 2791-92.

 5                 Finally, Justice Ginsburg, with whom Justices Sotomayor and Kagan

 6   joined, dissented. Justice Ginsburg reasoned that, when the British manufacturer "dealt

 7   with the United States as a single market" and sought to have its products distributed

 8   throughout the nation, due process did not prevent the state where the injury had occurred

 9   from holding the manufacturer accountable. Id. at 2801 (Ginsburg, J., dissenting). In her

10   view, the fact that only one of the British manufacturer's machines had been sold in New

11   Jersey was no bar to exercising jurisdiction over the manufacturer, when that machine

12   was the one that gave rise to the plaintiff's claim. Id. at 2804.

13                 When, as in this case, "a fragmented Court decides a case and no single

14   rationale explaining the result enjoys the assent of five Justices, the holding of the Court

15   may be viewed as that position taken by those Members who concurred in the judgmen[t]

16   on the narrowest grounds . . . ." Marks v. United States, 430 US 188, 193, 97 S Ct 990,

17   51 L Ed 2d 260 (1977) (internal quotation marks omitted) (ellipsis in original); accord

18   Panetti v. Quarterman, 551 US 930, 949, 127 S Ct 2842, 168 L Ed 2d 662 (2007)

19   (following Marks). Applying that rule, we look to Justice Breyer's opinion concurring in

20   the judgment for the "holding" in Nicastro that guides our resolution of this case; that is,

21   Justice Breyer's rationale was narrower than the plurality's and, as a result, controls our

22   resolution of this case on remand. We accordingly discuss the rationale in Justice

                                                      9
 1   Breyer's opinion in greater detail.

 2                  In explaining why the record was not sufficient to establish personal

 3   jurisdiction over the British manufacturer, Justice Breyer reasoned:

 4          "Here, the relevant facts found by the New Jersey Supreme Court show no
 5          'regular . . . flow' or 'regular course' of sales in New Jersey; and there is no
 6          'something more,' such as special state-related design, advertising, advice,
 7          marketing, or anything else. Mr. Nicastro, who here bears the burden of
 8          proving jurisdiction, has shown no specific effort by the British
 9          Manufacturer to sell in New Jersey. He has introduced no list of potential
10          New Jersey customers who might, for example, have regularly attended
11          trade shows [in other states at which the British Manufacturer had appeared
12          and solicited sales]. And he has not otherwise shown that the British
13          Manufacturer 'purposefully avail[ed] itself of the privilege of conducting
14          activities' within New Jersey, or that it delivered its goods in the stream of
15          commerce 'with the expectation that they will be purchased' by New Jersey
16          users. World-Wide Volkswagen [Corp. v. Woodson, 444 US 286, 297-98,
17          100 S Ct 559, 62 L Ed 2d 490 (1980)]."

18   Nicastro, 131 S Ct at 2792 (Breyer, J., concurring in the judgment) (ellipsis and second

19   alteration in original).8 Without evidence of a "'regular. . . flow' or 'regular course' of

20   sales" in New Jersey (or, in the absence of that evidence, evidence of "'something more,'

21   such as special state-related design, advertising, advice, [or] marketing"), Justice Breyer

22   concluded that the record in Nicastro was insufficient to establish personal jurisdiction

23   over the out-of-state defendant. Id. (ellipsis in original).

24                 Having reached that conclusion, Justice Breyer noted that he "d[id] not

25   agree with the plurality's seemingly strict no-jurisdiction rule" or the "absolute approach

            8
                   The phrases "'regular . . . flow' or 'regular course' of sales" are taken
     respectively from Justice Brennan's and Justice Stevens' separate opinions in Asahi Metal
     Industry Co. v. Superior Court of California, 480 US 102, 117, 122, 107 S Ct 1026, 94 L
     Ed 2d 92 (1987). Justice Breyer previously had quoted those phrases in parentheticals
     describing Justice Brennan's and Justice Stevens' opinions in Asahi. Nicastro, 131 S Ct at
     2792 (Breyer, J., concurring in the judgment).

                                                   10
 1   adopted by the New Jersey Supreme Court" -- i.e., that a state could assert jurisdiction

 2   over an out-of-state manufacturer as long as the manufacturer knows or should know that

 3   its products "'are distributed through a nationwide distribution system that might lead to

 4   those products being sold in any of the fifty states.'" Id. at 2793 (quoting the New Jersey

 5   Supreme Court's decision) (emphasis supplied by the opinion concurring in the

 6   judgment).

 7                 Justice Breyer explained that the New Jersey Supreme Court's rule was

 8   problematic for two reasons. First, it did not focus on the defendant's relationship with

 9   the forum, leading to the possibility that jurisdiction would rest "upon no more than the

10   occurrence of a product-based accident in the forum State." Id. Second, New Jersey's

11   rule would result in jurisdiction over all out-of-state manufacturers who distribute goods

12   nationally without regard to the fairness of making them appear and defend. Id. at 2793-

13   94. He explained that, although that rule might seem fair with regard to a large

14   manufacturer that had the ability to appear and defend wherever its products caused

15   injury (or to hedge against that possibility by buying insurance), New Jersey's rule did not

16   seem as fair when applied to a small manufacturer selling its products through a national

17   or international distributor. Id. Not only would it impose potentially undue burdens on

18   small manufacturers selling only a few products in a state, but it also would require those

19   manufacturers to anticipate and comply with the laws of the 50 states. Id. at 2794. For

20   those reasons, Justice Breyer declined to follow either of the broad approaches advanced

21   by the plurality or the New Jersey Supreme Court.

22                 With that understanding of Nicastro in mind, we turn to the facts of this

                                                 11
 1   case.9 The trial court reasonably could have found that CTE understood that Invacare

 2   would sell its wheelchairs and CTE's battery chargers throughout the United States.10

 3   CTE agreed to manufacture the battery chargers to Invacare's specifications and in

 4   compliance with federal, state, and local requirements. To be sure, nationwide

 5   distribution of a foreign manufacturer's products is not sufficient to establish jurisdiction

 6   over the manufacturer when that effort results in only a single sale in the forum state. See

 7   Nicastro, 131 S Ct at 2791 (Breyer, J., concurring in the judgment). In this case,

 8   however, the record shows that, over a two-year period, Invacare sold 1,102 motorized

 9   wheelchairs with CTE battery chargers in Oregon. In our view, the sale of over 1,100

10   CTE battery chargers within Oregon over a two-year period shows a "'regular . . . flow' or

11   'regular course' of sales" in Oregon. See id. at 2972 (Breyer, J., concurring in the


            9
                   Plaintiffs argue that we should look to this court's decision in State ex rel
     Hydraulic Servocontrols v. Dale, 294 Or 381, 657 P2d 211 (1982), to determine whether
     Oregon courts may assert specific jurisdiction over CTE. This court decided Hyrdaulic
     Servocontrols shortly after the Court decided World-Wide Volkswagen. Since then, the
     Court has attempted to define, first in Asahi and more recently in Nicastro, when a state
     court may assert specific jurisdiction over an out-of-state manufacturer that sells its
     product to another company, which then sells or distributes the product nationwide. Not
     only do the terms of the Court's remand direct us to consider this case further in light of
     Nicastro, but we would be remiss if we did not look initially to the more recent decisions
     in Nicastro and Asahi for guidance in deciding CTE's due process claim. As explained
     below, we need look no further than Nicastro to conclude that Oregon courts may
     exercise specific jurisdiction over CTE.
            10
                     As noted, ORCP 21 A authorizes Oregon trial courts to consider "affidavits,
     declarations and other evidence" in "determin[ing] the existence or nonexistence of the
     facts supporting" the defense of a lack of personal jurisdiction. It thus authorizes a state
     trial court to determine the facts and draw reasonable inferences from undisputed facts in
     the course of deciding whether it has personal jurisdiction over an out-of-state defendant.
     As a matter of state law, when a trial court has engaged in that enterprise, we construe the
     facts and draw all reasonable inferences consistently with the trial court's ruling.

                                                  12
 1   judgment) (ellipsis in original).11 The sale of the CTE battery charger in Oregon that led

 2   to the death of plaintiffs' mother was not an isolated or fortuitous occurrence.

 3                 In arguing for a different conclusion, CTE relies primarily on the reasoning

 4   in the plurality opinion in Nicastro. If that opinion were controlling, it might be difficult

 5   for plaintiff to show that, on this record, CTE's contacts with Oregon were sufficient to

 6   establish jurisdiction over it. As explained above, however, the rule that the Court

 7   announced in Marks for construing splintered decisions leads us to conclude that the

 8   rationale expressed in Justice Breyer's opinion concurring in the judgment controls our

 9   resolution of this case. Following his opinion, we hold that the volume of sales in this

10   case was sufficient to show a "regular course of sales" and thus establish sufficient

11   minimum contacts for an Oregon court to exercise specific jurisdiction over CTE. Cf.

12   Nicastro, 131 S Ct at 2792 (Breyer, J., concurring in the judgment) (internal quotation

13   marks omitted).

14                 CTE argues alternatively that "Invacare's sales figures in Oregon were a

15   min[i]scule fraction -- both in sheer numbers, as well as the proportion of end product

16   manufacturer's total sales in the forum -- compared to what the United States Supreme

17   Court unanimously found to be insufficient in Asahi [Metal Industry Co. v. Superior

18   Court of California, 480 US 102, 107 S Ct 1026, 94 L Ed 2d 92 (1987)]." We read both

19   the holding and the record in Asahi differently. In that case, a Japanese manufacturer



            11
                  By contrast, over a 15-year period, only one British metal shearing machine
     was sold in New Jersey. See Nicastro, 987 A2d at 579 (noting that the British
     manufacturer's marketing efforts in the United States lasted from1990 to 2005).

                                                  13
 1   (Asahi) sold valve assemblies to a Chinese tire tube manufacturer (Cheng Shin), which

 2   incorporated both Asahi's valve assemblies and valve assemblies from other

 3   manufacturers into its tire tubes, which it sold worldwide. Id. at 106. Cheng Shin alleged

 4   that 20 percent of the tire tubes that it sold in the United States were sold in California.

 5   Id. Beyond that, the decision in Asahi does not identify the total number of Cheng Shin

 6   tire tubes sold in either the United States or California, nor does it identify either the

 7   number of Cheng Shin tire tubes sold in the United States or California that incorporated

 8   Asahi's valve assemblies. See id. Apparently, the only evidence in the record on that

 9   issue consisted of an "informal examination" of a single store in California, which

10   revealed that Cheng Shin had manufactured 53 of the 115 tire tubes offered for sale in

11   that store and that only 12 of the 53 Cheng Shin tire tubes contained Asahi valve

12   assemblies. Id. at 107.

13                 When one of Cheng Shin's tire tubes failed, the person injured as a result of

14   that failure brought suit in a California state court against Cheng Shin, which filed an

15   indemnification claim against Asahi. Id. at 105-06. All the parties settled except for

16   Cheng Shin and Asahi, which defended against Cheng Shin's indemnification claim on

17   the ground that the California state courts lacked personal jurisdiction over it. As we read

18   the various opinions in Asahi, a majority of the Court did not agree whether the evidence

19   of Cheng Shin's sales of tire tubes containing Asahi valves established sufficient

20   minimum contacts between Asahi and California for California to assert jurisdiction over

21   it.

22                 Justice O'Connor, writing for four Justices in Asahi, would have required

                                                   14
 1   evidence that Asahi purposefully had availed itself of the privilege of doing business in

 2   California; in her view, the fact that Asahi was "awar[e] that some of the valves sold to

 3   Cheng Shin would be incorporated into tire tubes sold in California" was not sufficient to

 4   satisfy due process. Id. at 112 (opinion of O'Connor, J.). Justice Brennan, writing for

 5   four Justices, would have held that the sale of Asahi's valve assemblies in California

 6   established a "regular and anticipated flow of products from manufacture to distribution

 7   to retail sale," which was sufficient to establish the minimum contacts with California

 8   necessary for that state to assert personal jurisdiction over Asahi. Id. at 117, 121

 9   (Brennan, J., concurring in part and concurring in the judgment). Finally, Justice Stevens

10   found it unnecessary to decide whether minimum contacts existed. Id. at 121 (Stevens,

11   J., concurring in part and concurring in the judgment). He reasoned that, even if they did,

12   "this case fits within the rule that 'minimum requirements inherent in the concept of "fair

13   play and substantial justice" may defeat the reasonableness of jurisdiction even if the

14   defendant has purposefully engaged in forum activities.'" Id. at 121-22 (Stevens, J.,

15   concurring in part and concurring in the judgment) (quoting Burger King Corp. v.

16   Rudzewicz, 471 US 462, 477-78, 105 S Ct 2174, 85 L Ed 2d 528 (1985)).

17                 The Court agreed on only one point in Asahi. After Justice O'Connor

18   expressed her view that Asahi's contacts with California were not sufficient to give the

19   California courts jurisdiction over it, she reasoned alternatively that, even if those

20   contacts were sufficient, exercising jurisdiction in the circumstances of that case would

21   offend "traditional notions of fair play and substantial justice." Id. at 113 (internal

22   quotation marks omitted). That part of her opinion rested primarily on the unique

                                                   15
 1   circumstance that, after all the other parties had settled, the only issue left to be

 2   adjudicated in California was an indemnification claim by one foreign company against

 3   another involving a transaction (Asahi's sale of valve assemblies to Cheng Shin) that had

 4   no connection to either California or the United States. Id. at 114-15.

 5                 All the Court joined that part of Justice O'Connor's opinion. See id. at 116

 6   (Brennan, J., concurring in part and concurring in the judgment); id. at 121 (Stevens, J.,

 7   concurring in part and concurring in the judgment). As we read Asahi, its holding is

 8   limited to the alternative ground stated in Part II-B of Justice O'Connor's opinion; that is,

 9   the Court decided the case on an alternative ground that either assumed, in Justice

10   O'Connor's opinion, or found, in Justice Brennan's opinion, sufficient minimum contacts.

11                 Contrary to CTE's argument in this case, a unanimous Court did not find in

12   Asahi that Asahi's contacts were not sufficient to establish personal jurisdiction over it.12

13   Beyond that, we think that CTE misperceives the significance of the facts regarding the

14   sales in Asahi. As CTE correctly notes, the decision recites that Asahi sold 100,000 to

15   500,000 valve assemblies to Cheng Shin annually. See id. at 106. However, the decision

16   also explained that "Cheng Shin purchases valve assemblies from other suppliers as well,

17   and sells finished tubes throughout the world." Id. As noted, the decision does not

18   identify the annual sales figures in California (or the United States) of Cheng Shin's tubes



            12
                     Not only would four Justices have found that Asahi's contacts were
     sufficient for California to exercise jurisdiction over it, Asahi, 480 US at 121 (Brennan,
     J., concurring in part and concurring in the judgment), but Justice Stevens observed that,
     if he were to reach the issue, he would be inclined to conclude that the evidence was
     sufficient, id. at 122 (Stevens, J., concurring in part and concurring in the judgment).

                                                    16
 1   containing Asahi's valve assemblies. It does not even identify how many tire tubes

 2   Cheng Shin sold annually in California (or the United States), with or without Asahi's

 3   valve assemblies. See id. at 106-07. Without that information, it is difficult to make

 4   much of the annual sales from Asahi to Cheng Shin, not only because Asahi was not the

 5   only manufacturer that supplied valve assemblies to Cheng Shin but also because Cheng

 6   Shin sold its tire tubes throughout the world and could have sold its tire tubes with Asahi

 7   valves primarily in countries other than the United States. Cf. Goodyear Dunlop Tires,

 8   131 S Ct at 2852 (noting that Goodyear's European subsidiaries marketed their tires for

 9   use primarily in European countries and that only a small percentage of those tires

10   reached the forum state).

11                 In our view, the decision in Asahi provides little assistance to CTE.

12   However, to the extent that the annual number of battery chargers that CTE sold to

13   Invacare matters, we note that the trial court reasonably could have found that, in 2006-

14   07, CTE sold roughly 76,000 battery chargers to Invacare in Ohio, which Invacare then

15   sold with its wheelchairs throughout the United States.13 In any event, in 2006-07, 1,102

16   Invacare wheelchairs equipped with CTE battery chargers were sold in Oregon. CTE has

17   provided no valid reason to say that the sale of 1,102 CTE battery chargers in Oregon

            13
                     We say "roughly" because the record is not precise. It discloses only the
     "total accounts payable" from Invacare's manufacturing facility in Ohio to CTE. Using
     the figures that CTE's representative used to determine the weighted average cost of the
     battery chargers that Invacare sold in Oregon and the "total accounts payable" to CTE,
     the trial court could have found that the total sales from CTE to Invacare exceeded
     76,000. We note that that calculation assumes that the weighted average cost was the
     same both in Oregon and nationally. It also assumes that the total amount payable to
     CTE reflected only the cost of battery chargers that CTE had sold to Invacare.

                                                 17
 1   over a two-year period does not constitute a "regular course of sales" in this state. See

 2   Nicastro, 131 S Ct at 2792 (Breyer, J., concurring in the judgment) (internal quotation

 3   marks omitted). Put differently, the pattern of sales of CTE's battery chargers in Oregon

 4   establishes a "relationship between 'the defendant, the forum, and the litigation,' [such

 5   that] it is fair, in light of the defendant's contacts with [this] forum, to subject the

 6   defendant to suit [h]ere.'" Id. (Breyer, J., concurring in the judgment) (quoting Shaffer v.

 7   Heitner, 433 US 186, 204, 97 S Ct 2569, 53 L Ed 2d 683 (1977) (emphasis added by the

 8   opinion concurring in the judgment).

 9                  One other issue remains. As Asahi makes clear, even if the sale of CTE's

10   battery chargers in Oregon provides sufficient minimum contacts for Oregon courts to

11   assert personal jurisdiction over CTE, the remaining question is whether exercising

12   jurisdiction would "offend traditional notions of fair play and substantial justice" and thus

13   be inconsistent with due process. See Asahi, 480 US at 113 (internal quotation marks

14   omitted). On that issue, we note that this is not a case, as in Asahi, where the only

15   question that remains to be adjudicated is a claim for indemnification between two out-

16   of-state defendants. Rather, in this case, Oregon residents seek to vindicate their claims

17   for the death of their mother in the state where the death occurred, allegedly as a result of

18   a defect in CTE's battery charger. Oregon has a strong interest in providing a forum for

19   its residents who are injured in this state to recover for their injuries. Cf. Asahi, 480 US

20   at 114-16 (noting that the calculus would be different if California had an interest in

21   determining the plaintiff's claim).

22                  Moreover, this case does not raise the concerns about exercising

                                                    18
 1   jurisdiction over small manufacturers that distribute only a few products in a state as a

 2   result of a national distribution system, which Justice Breyer noted in Nicastro. See 131

 3   S Ct at 2794 (Breyer, J., concurring in the judgment). As an initial matter, the trial court

 4   reasonably could have found that CTE is not a small manufacturer. Rather, over a two-

 5   year period, CTE's revenues (or at least the amounts payable) from Invacare alone

 6   exceeded $2,150,000. As noted, the trial court also reasonably could have found that,

 7   over that period, Invacare purchased approximately 76,000 battery chargers from CTE

 8   for distribution in this country. Additionally, in the master supply agreement between

 9   CTE and Invacare, CTE promised that its battery chargers would comply with all federal,

10   state, and local laws. CTE thus voluntarily undertook to bring its battery chargers into

11   compliance with the laws of the various states in which Invacare sold them. Finally, as

12   part of the master supply agreement, CTE agreed that it would "continuously have on file

13   with [Invacare] a current Certificate of Insurance showing evidence of products and

14   general liability coverage for bodily injury, personal injury and property damage in the

15   amount of one million dollars ($1,000,000) per occurrence." In selling its battery

16   chargers to Invacare, CTE anticipated the need to defend against the very sort of claim

17   that plaintiffs have brought here, and it agreed to obtain insurance as a hedge against the

18   cost of doing so.

19                 Requiring CTE to appear in Oregon does not offend traditional notions of

20   fair play and substantial justice and thus does not preclude the trial court from exercising

21   jurisdiction over CTE as a result of its contacts with this forum. The trial court could,

22   consistently with due process, require CTE to appear in an Oregon court and respond to

                                                  19
1   plaintiffs' claims that a defect in its battery charger caused their mother's death.

2                 The alternative writ of mandamus is dismissed.




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