
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00617-CV


In re Ford Motor Company




ORIGINAL PROCEEDING FROM TRAVIS COUNTY


M E M O R A N D U M   O P I N I O N

		This original proceeding arises from a lawsuit filed in Dallas by a Tennessee couple,
Ken and Sherlyn Melton, seeking recovery for property damage from a fire that originated in
the Meltons' Ford pickup truck while it was parked in the driveway of their Tennessee home.  The
Meltons alleged that the fire ignited due to defects in a cruise-control deactivation switch and/or
one of the switch's components, Kapton, a Teflon-coated polymer film.  The Meltons sued Ford,
Texas Instruments, Inc. (the switch's manufacturer), and E.I. DuPont de Nemours and Company
(the manufacturer of Kapton), alleging products-liability theories.  Ford successfully sought to have
the Meltons' suit transferred to an MDL pretrial judge and consolidated with several similar suits
pending against Ford in Texas state court.  See Tex. R. Jud. Admin. 13.3, 13.5.  The MDL panel
transferred the cases to the 53rd Judicial District Court of Travis County.  Ford then filed a motion
to dismiss the Meltons' suit under the common-law forum-non-conveniens doctrine, urging that
the suit should instead be brought in Tennessee.  See In re Pirelli Tires, 247 S.W.3d 670, 675
(Tex. 2007) (forum-non-conveniens doctrine authorizes a trial court to decline to exercise
jurisdiction when "for the convenience of the litigants and the witnesses and the interest of justice,
the action should be instituted in another forum").  Following a hearing, the district court denied
Ford's motion.  Ford subsequently filed a petition for writ of mandamus to compel the district court
to withdraw its order and grant Ford's motion. (1)
		Although there are no findings of fact and conclusions of law specifying the grounds
for the district court's ruling, the reporter's record from the hearing reveals a primary concern
with whether Ford had produced any evidence that its access to Tennessee witnesses and evidence
would be restricted or burdened if trial was held in Texas.  See Pirelli Tires, 247 S.W.3d at 676-77
(describing the "private interest" factors that, among others, inform application of the forum-non-conveniens doctrine) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).  Ford presented
evidence that all of the witnesses to the fire and the damages it caused resided in Tennessee, that
the pickup and all components at issue were manufactured and designed outside of Texas, and
that no witness in the case resided in Texas.  However, Ford did not present evidence that any
specific Tennessee witnesses would refuse to testify voluntarily in a Texas trial or that it could not
obtain their testimony through other means, such as depositions.  Cf. id. at 678-79 (emphasizing that
"several critical" Mexican fact witnesses "have refused to be deposed" in Texas); In re Williams Gas
Processing Co., No. 14-07-01026-CV, 2008 Tex. App. LEXIS 701, at *4-5 (Tex. App.--Houston
[14th Dist.] 2008, pet. denied) (mem. op.) (holding that movant could not show abuse of discretion
in denial of forum-non-conveniens motion when it did not present evidence whether Wyoming
fact witnesses "will testify voluntarily in Texas; whether it would be burdensome to or inconvenient
for any witness to travel to Texas; the cost of obtaining those witnesses' presence in Texas; and
difficulty in accessing sources of proof") (citing Lee v. Na, 198 S.W.3d 492, 495 (Tex. App.--Dallas
2006, no pet.)).  After Ford filed its mandamus petition in this Court, the Texas Supreme Court
issued an opinion that clarified the burden of proof on these types of issues.  In re General Elec. Co.,
271 S.W.3d 681, 689-90 (Tex. 2008) (emphasizing that "the evidence and witnesses relevant to
the issue of Richards's asbestos exposure and his damages are outside the subpoena power of
Texas courts," and holding that movants were not required to prove that it was "impossible" to
defend the suit without that evidence or to "identify any specific witness or evidence they are unable
to obtain"); id. at 691 ("detail regarding which witnesses would be called and what evidence would
be unavailable is not necessary in a case such as this where the practical problems of trying a
personal injury case hundreds of miles from the scene of the occurrence, the place where the lay
witnesses reside, and where most other evidence is located is manifest.").  General Electric also has
potential implications for another issue of apparent concern to the district court at the hearing--the
singular significance of the fact that TI's corporate headquarters are located in Dallas.  See id. at 684
(granting mandamus relief compelling forum-non-conveniens dismissal even while three of twenty-one defendants were headquartered in Texas).
		As a threshold matter, the Meltons urge that we should disregard General Electric
because that case was governed by the Texas forum-non-conveniens statute, while this case
is governed by the common-law forum-non-conveniens doctrine.  See id. at 685-87 (discussing
Tex. Civ. Prac. & Rem. Code Ann. § 71.051(b) (West 2008)); see also Tex. Civ. Prac. & Rem. Code
Ann. § 71.051(i) (West 2008).  We are not persuaded that General Electric has no application here. 
As the supreme court explained in Pirelli Tires, the Texas forum-non-conveniens statute
incorporates the common-law Gulf Oil framework of "private-interest" and "public-interest" factors. 
Pirelli Tires, 247 S.W.3d at 675-77 (discussing Gulf Oil, 330 U.S. at 508)); see also General Elec.,
271 S.W.3d at 689, 691-92 (applying Gulf Oil factors when analyzing statutory factors of whether
maintaining the claim in Texas would work a "substantial injustice to the moving party," Tex. Civ.
Prac. & Rem. Code Ann. § 71.051(b)(3), and whether "the balance of the private interests of the
parties and the public interest of the state predominate in favor of the claim or action being brought
in an alternative forum," id. § 71.053(b)(5)). (2)  In fact, General Electric's holdings regarding the
movant's burden as to its access to out-of-state witnesses and evidence were stated in terms of the
Gulf Oil factors.  271 S.W.3d at 689-92.  Consequently, these holdings must guide application of the
common-law forum-non-conveniens doctrine that governs here. (3)
		The district court did not have the benefit of General Electric's guidance when
considering the factors guiding its ruling on Ford's forum-non-conveniens motion.  Nor did the
parties when making an evidentiary record in support of or opposition to Ford's motion.  Under the
circumstances here, we believe that the parties should have an opportunity to re-evaluate what they
need vis-a-vis an evidentiary record and that the district court should have the opportunity to
reconsider the motion to dismiss in light of General Electric.  Accordingly, we deny Ford's petition
for writ of mandamus without prejudice.  See In re Van Waters & Rogers, Inc., 988 S.W.2d 740, 741
(Tex. 1998) (orig. proceeding) (per curiam); In re Baylor Medical Center, 134 S.W.3d 359, 359
(Tex. App.--Waco 2003, orig. proceeding).


						___________________________________________
						Bob Pemberton, JusticeBefore Justices Patterson, Pemberton and Waldrop
Filed:   March 6, 2009
1.   Each of Ford's co-defendants, DuPont and TI, has taken no position regarding either Ford's
forum-non-conveniens motion or its mandamus petition.
2.   We also observe that prior to the General Electric decision, the Meltons, citing Pirelli Tire,
took the position that "the same principles apply to both statutory and common law forum non
conveniens."
3.   We express no opinion, however, regarding any other grounds the Meltons might later
assert for distinguishing General Electric from this case.
