Monday, September 24, 2007
Family Accused of 'Forum Shopping'
By Scott Sandlin
Copyright © 2007 Albuquerque Journal; Journal Staff Writer
The accident was gruesome and tragic.
Although she wore a seat belt, the driver of the 2000 Nissan Frontier, 22-year-old Morayma Tarango, was cut in two and ejected when her vehicle went out of control near Socorro.
Tarango's family sued Nissan, claiming defective design created unreasonably dangerous conditions when a safer alternative design was available.
But the lawsuit over her death was filed in Las Vegas, N.M., nearly 200 miles away, in a district defense lawyers say is way too friendly to plaintiffs.
Under New Mexico law, there were three choices about where the complaint could be filed: where the accident occurred, where the plaintiff lives or where Nissan's registered agent resides.
In this case, the family decided to have a Las Vegas lawyer act as personal representative for the estate, meaning the attorney became the plaintiff in the lawsuit and assumed responsibility for distributing any proceeds from it. The complaint was filed in San Miguel County.
Nissan cried foul.
It said the proper locations for the lawsuit to be filed would be Socorro County, where the family is from; Bernalillo County, where Tarango bought the vehicle; or Lea County, where Nissan, a foreign corporation, has its registered agent.
In a series of briefs filed with the trial court, then with the New Mexico Court of Appeals and the New Mexico Supreme Court, Nissan attorneys Jeff Croasdell and Pat Shay of the Rodey law firm have argued that the Tarango family is "forum shopping" in a way not permitted by state statute that governs venue. Venue directs where a case is properly filed.
Nissan's attorneys say the personal representative is essentially a straw man to let plaintiffs pick their preferred district.
The family has no connections to San Miguel County, Nissan claims.
"The fact that a 'personal representative' is named to bring a wrongful death action is merely 'incidental,' '' Nissan attorneys argue. "Because the personal representative under the wrongful death statute is not much more than a name under which to bring a lawsuit, he has no real connection to the claims made."
Underlying the company's opposition to San Miguel County is a belief in the defense bar that northern New Mexico counties have historically been excessively generous in awarding damages against out-of-state defendants.
The family responds, through its attorney David Jaramillo of the Gaddy Jaramillo law firm, that its choice of filing in San Miguel County is fully supported by the law.
"The venue statute in New Mexico provides a number of options for plaintiffs to select," he said. "The venue statute, which is legislatively created, makes clear venue is wherever the personal representative resides. They (legislators) recognize that forum selection is a valid right."
Nissan also contends the venue statute is really about convenience. The company says Las Vegas is inconvenient because parties would have to pay witnesses to travel from Socorro and jurors would not be able to view the accident site.
Jaramillo thinks that's a false argument.
He notes that Nissan's registered agent is in Hobbs, while most major corporations doing business in New Mexico have their agents in Santa Fe.
"You have to ask yourself, 'Why does a foreign corporation choose to have service in Hobbs if they don't see some advantage in it?' '' Jaramillo said.
The law is well established, he said, and the Supreme Court reiterated as recently as Aug. 30 in an opinion that notes "the expansive nature of the venue statute and the broad discretion it allows plaintiffs in choosing where to bring an action."
Croasdell said he and colleagues have found about 30 cases statewide the last five years with similar issues.
Tens of millions
The venue question matters because the stakes can be high.
He said the average jury award statewide in a wrongful death case is about $1.2 million. But Albuquerque recently had a $54 million jury award in a nursing home case, and a Roswell jury returned an award of $22 million.
Jaramillo says Croasdell's opinion about open-handed northern juries is simply an assessment based on anecdotes.
"They clearly have that view (of jury awards)," Jaramillo said, adding that he is unaware of any academic or statistical studies to bolster their belief.
Croasdell said Albuquerque pollster Brian Sanderoff researched jury verdicts several years ago, but the focus was Guadalupe County.
"There is a fear about trying cases in San Miguel county, and it's not completely unfounded." He said that in cases involving local plaintiffs, there hasn't been a defense verdict for an out-of-state defendant in more than 40 years.
Trial judge Tim Garcia, sitting by designation outside his own district, denied Nissan's motion to dismiss.
"Under the current standard, I believe this is proper forum shopping," Garcia said at the hearing. "But if the Supreme Court wants to tell us it's not ... or the Court of Appeals, we would all love to know, because they all come to us, either in TA (Tierra Amarilla), San Miguel, Santa Fe, Taos. ... I would like some guidance, we all would, as to this issue."
He allowed Nissan to try to persuade the Court of Appeals to hear the issue. It said no.
The state Supreme Court, without comment, also denied Nissan's petition to hear the issue before trial.
Nissan asked for reconsideration but the matter was denied Friday.
That means the case will go to trial, and if Nissan loses, the same question will be litigated through the appellate courts. And the defense bar could opt to make a run at legislative changes in the venue statute.
"This is not something that's new to us. It's something they've raised before and may raise again," Jaramillo said of the forum-shopping accusation.
The trial setting will be in 2008.
In Las Vegas.