TOXIC TORTS AND ENVIRONMENTAL LAW A Look Beyond the Place of Injury Determining Choice of Law in

By Philip L. Harris and Toxic Tort Litigation Jennifer L. Dlugosz

The many nuances that A chemical spill occurs when a train derails in California, can arise in toxic tort killing several people visiting from Oregon and contam- cases suggest that choice inating property near the railroad tracks. The company of law issues may be that owned the train cars and chemicals aboard them is a foreign company with offices in Florida While a few decades ago, choice of law issues worthy of pursuing. and a chemical manufacturing plant in in toxic tort cases might have escaped rig- Mexico. The estates of the injured parties orous analysis, courts today review many bring a lawsuit in California, alleging neg- factors beyond merely the place of injury ligence three years after the spill, and the under what has been dubbed “the most sig- court must decide which law to apply to nificant relationship” approach. the various issues and claims in the case. This article discusses the historical If California or Oregon law is applied, the treatment of choice of law rules and how case may be barred by the statute of lim- the current rules are applied in modern day itations. If Florida law is applied, there is toxic tort actions. no statute of limitations issue. Further, if California law is applied, the estates will When a Conflict of Law Arises not be able to collect pain and suffering Before engaging in a conflict of law analysis, damages, but if Oregon law is applied the a court must first determine that there is a estates may be able to collect such damages. conflict between the laws of the forum juris- If an argument can be made that Mexican diction and those of another state or country. law applies, the parties may need to hire If there is no conflict, a court will apply the experts to research, interpret and translate law of the forum. If a conflict is identified on the potentially applicable law and deter- a particular issue, then a court looks to the mine whether it conflicts with U.S. law. forum jurisdiction’s choice of law principles With the globalization of today’s econ- to decide which law applies. In diversity ac- omy, conflicts of law issues are seen reg- tions in a federal court, a court will apply the ularly in courtrooms across the country. choice of law principles of the forum state.

■ Philip L. Harris is a partner and Jennifer L. Dlugosz is an associate in the Chicago office of Jenner & Block LLP. Mr. Harris is co-chair of the firm’s Product Liability and Mass Tort Defense Practice. He has success- fully defended jury cases involving multi-million dollar compensatory and punitive damages claims, and has served as national, regional, and generic defense counsel for companies facing repetitive exposure issues. Ms. Dlugosz focuses her practice on product liability, toxic torts, and complex commercial litigation. She was recently appointed to the DRI Young Lawyers Committee Steering Committee.

30 ■ For The Defense ■ April 2014 Even if a court makes a determination ness of the parties; and (4) the place where discovery, the plaintiff alleged that he was that another jurisdiction’s law applies to a the relationship, if any, between the par- exposed to the manganese at over 100 dif- particular issue, a court is not required to ties is centered. Id. at §145. Depending on ferent job sites in 15 different states. The decide all issues in the case under the other the facts of a case, some of these factors plaintiff performed most of his welding jurisdiction’s law. For example, most courts will be more important and have more work in Texas, but he also performed some under traditional choice of law principles weight than others. For example, in a toxic welding work in Alabama, where he also will still apply the forum law to issues such tort case when the injury is the result of resided. The plaintiff filed the lawsuit in as service of process, pleadings, joinder of an accident, there often was not a relation- Ohio where two of the largest defendants parties, and trial administration. Restate- ship between the parties before the inci- were headquartered. The court determined ment (Second) of Conflict of Laws (1971) dent causing the alleged injury. Similarly, §145. Further, as discussed later in this arti- the factor of “protection of justified expec- cle, a court also may apply different state tations” may not play a large role in toxic law to different defendants and to differ- tort cases because those causing uninten- Courts also may hold ent issues under the doctrine of dépeçage. tional harm likely did not consider the law that would be applied to a future lawsuit. evidentiary hearings to History of Choice of Law Rules See id. at cmt. (1)(b). For many years, the majority of courts in Although the majority of jurisdictions determine how to interpret the United States applied the rule of lex have adopted the most significant relation- loci delicti to tort cases, under which the ship approach to conflict of law issues, in foreign law properly. place of injury determines choice of law. many personal injury and wrongful death This also was the position of the origi- cases, state conflict of law rules include nal Restatement on Conflicts of Law. This a rebuttable presumption that the state that conflicts existed between the laws of approach has its shortcomings. In some where the injury occurs determines the Alabama, Texas and Ohio. For example, situations the place of injury has little or rights and liabilities of the parties. See Ohio and Texas law recognize compara- no relationship to the incident or the par- Restatement §§146 & 175. However, for tive negligence while Alabama follows the ties. Thus, these choice of law analyses have wrongful death matters, the place of injury doctrine of contributory negligence. The increasingly evolved, and many courts have is not always the place of death, but rather court applied the choice of law rules of the adopted the most significant relationship “the place where the force set in motion by forum, Ohio, which follows the most sig- test from the Second Restatement in lieu the actor first takes effect on the person.” nificant relationship approach. Under Ohio of the place of injury approach. See id. at §175 cmt. b. law, there also is a rebuttable presumption Under the most significant relation- that the law of the state where the injury ship approach, the rights and liabilities of The Typical Approach occurred will determine liability. the parties regarding a particular issue are In toxic tort cases that result from a sudden, The plaintiff argued that the place where determined by the local law of the state that isolated or fortuitous incident, the place of his injury occurred was not limited to one has the most significant relationship to the injury likely will not hold as much weight location because of his work in multiple occurrence and the parties. Restatement in the choice of law determination. How- states, and therefore, the place of injury fac- §145. The most significant relationship is ever, in toxic tort cases where the expo- tor was not determinative. The court dis- determined by reviewing a number of fac- sure to the toxic substance occurred over agreed, finding that while the plaintiff had tors, including (1) the needs of the inter- a period of years in one location, courts some exposure in several other states, the state and international systems; (2) the generally will find that the state where the vast majority of his welding jobs occurred relevant policies of the forum; (3) the rele- injury occurred controls the rights and in Texas, and Texas had the most substan- vant policies of other interested states and liabilities of the parties unless some other tial relationship to the personal injury. the relative interests of those states in the state has a more significant relationship to With regard to the place where the con- determination of the particular issue; (4) a particular issue. An illustration of this duct causing the injury occurred, the plain- the protection of justified expectations; (5) is the decision in Byers v. Lincoln Electric tiff argued that because the defendants the basic policies underlying the particu- Co., 607 F. Supp. 2d 840 (N.D. Ohio 2009). manufactured most of the relevant prod- lar field of law; (6) certainty, predictabil- In Byers, the court held that when a plain- ucts in Ohio and made decisions regard- ity and uniformity of result; and (7) ease tiff was exposed to toxic fumes in several ing warnings in Ohio, this factor should of the determination and application of states, the state that had the most signif- weigh in favor of Ohio law. The court dis- the law to be applied. Id. at §6. Contacts to icant relationship to the case was the one agreed, finding that only some of the de- be taken into account when applying the in which plaintiff’s most prolonged expo- fendants were headquartered in Ohio and principles above to a tort case include (1) sure occurred. The plaintiff was a welder under Ohio law “a failure to warn occurs at the place of the injury; (2) the place where who alleged that he inhaled fumes from the place where the plaintiffs could reason- the conduct causing the injury occurred; welding rods that contained manganese ably have been warned regardless of where (3) the domicile, residence, nationality, and as a result he suffered permanent neu- the decision not to warn took place.” Id. at place of incorporation and place of busi- rological injury and other harm. During 851. The court held that because the plain-

For The Defense ■ April 2014 ■ 31 TOXIC TORTS AND ENVIRONMENTAL LAW tiff used the defendants’ products primar- states, including Alabama, Georgia, Kan- an expert to interpret the foreign law and ily in Texas, this factor also weighed in sas, Maryland and Virginia, still follow the to assist in determining whether a con- favor of applying Texas law. place of injury approach, and not the sig- flict exists. Because a court will have few The court also considered the domi- nificant relationship approach, for choice if any cases on which to rely, having an cile of the parties. The defendants’ states of law decisions in tort cases. See Symeon expert’s affidavit and testimony discuss- of incorporation and principle places of C. Symeonides, Choice of Law in the Amer- ing the foreign jurisdiction’s law is often businesses were all different; therefore, the ican Courts in 2012: Twenty-Sixth Annual necessary. See, e.g., In re Aircrash Disaster court determined that this factor played no Survey, 61 Am. J. Comp. L. 217, 278 (Spring Near Roselawn, Indiana, On October 31, role in its analysis. The court also reviewed 2013). See also Lifestar Response of Ala., Inc. 1994, 1997 WL 572897, 1 (N.D. Ill. Sept. 9, v. Admiral Ins. Co., 17 So. 3d 200 (Ala. 2009) 1997) (where defendants presented expert (“Under the principle of lex loci delicti, an affidavits to assist in the court’s determi- Alabama court will determine the sub- nation of whether French law permits puni- Several courts have stantive rights of an injured party accord- tive damages). Under Federal Rule of Civil ing to the law of the state where the injury Procedure 44.1, a court may “consider any addressed this very issue occurred.”); Bullard v. MRA Holding, LLC, relevant material or source, including testi- 292 Ga. 748, 750 (Ga. 2013) (“for over 100 mony, whether or not submitted by a party and have held that different years, the state of Georgia has followed the or admissible under the Federal Rules of doctrine of lex loci delicti in tort cases…”); Evidence” when determining the law of a states’ laws can be applied Ortiz v. Biscanin, 34 Kan. App. 2d 445, 466 foreign jurisdiction. Fed. R. Civ. P. 44.1. See (Kan. Ct. App. 2004) (“the rule in this state also Estate of Botvin v. Islamic Republic of to different defendants and is that the law of the state where the tort oc- Iran, 772 F. Supp. 2d 218, 227–28 (D.D.C. curred—lex loci delicti—should apply.”); 2011) (upholding the district court’s deci- different issues in a case. Erie Ins. Exch. v. Heffernan, 399 Md. 598, sion to apply Israeli law). 620 (Md. 2007) (“Maryland law is clear Courts also may hold evidentiary hear- The process of applying that in a conflict of law situation… where ings to determine how to interpret foreign the events giving rise to a tort action occur law properly. For example, in Doe v. Tex- the rules of different states in more than one State, we apply the law of aco, Inc., 2006 WL 2917581, at 1* (N.D. Cal. the State where the injury—the last event Oct. 11, 2006), a toxic tort action regarding to determine different required to constitute the tort occurred.”); alleged exposure to contaminated water, Jones v. R. S. Jones & Assocs., 246 Va. 3, 5 the district court held an evidentiary hear- issues is called dépeçage. (Va. 1993) (holding that the lex loci delicti ing to determine the proper interpreta- standard is “the settled rule in Virginia.”). tion of Ecuador law. During the hearing, If state law takes the most significant the plaintiffs and the defendants each pre- the facts regarding the place where the rela- relationship approach, a careful review of sented an attorney from Ecuador to testify tionship between the parties was centered the facts and evidence available should as an expert on Ecuador law. Following that but found that there was never “any real, be made because it is possible that a state hearing the court issued an order regard- personal, ongoing relationship” between other than the place of injury has a more ing the interpretation of the relevant Ecua- the parties. Finally, the court considered significant relationship to the parties. Fur- dorian law, then at a later date, following the broader principles that underlie the ther, when there are multiple places of discovery, the court determined whether choice of law analysis, including Texas’ pol- injury or exposure, the jurisdiction with California or Ecuador law applied to the icy to compensate its citizens and residents the most significant relationship may vary relevant issue. Gonzales v. Texaco, Inc. 2007 for injuries inflicted on them through tort- by issue or defendant. WL 4044319 (N.D. Cal. 2007). When the ious conduct. Taking into consideration views among the experts conflict, courts these factors, the court determined that Special Considerations in Cases sometimes have appointed an independent Texas law should apply. Involving International Law expert. See Carbotrade S.p.A. v. Bureau If the facts in Byers were slightly dif- While looking to case law and statutes Veritas, 1998 WL 397847 (S.D.N.Y. July 13, ferent, for example, if the plaintiff did not can determine whether a conflict exists 1998) (appointing an independent expert perform a majority of welding work in any between the laws of two states, determin- on Greek law to testify during an eviden- one state, it is possible that the court would ing whether a conflict exists between the tiary hearing along with plaintiff’s and have applied law from a place other than law of a state and a foreign country might defendant’s experts). Ideally, of course, the the place of injury. In many personal in- be more difficult. This is particularly true parties would agree about the content of jury and wrongful death cases, despite ev- in foreign jurisdictions that do not fol- the controlling law. idence that several other jurisdiction’s law low common law or the doctrine of stare might be relevant, courts will often decide decisis. Thus, in cases involving conflict Different Law for Different Defendants that the place of injury has the most signif- of law issues between a state and a for- In toxic tort cases with multiple defend- icant relationship to a case. In fact, several eign country, it often is necessary to hire ants, applying the laws of one state may

32 ■ For The Defense ■ April 2014 not be appropriate for all defendants. In the exposure to that defendant’s asbestos-­ “[t]he conduct that serves as the basis of asbestos cases, and other toxic tort cases containing materials occurred in Califor- the punitive damage award here occurred in which exposure to the alleged toxic sub- nia, and Wisconsin law would apply to in California and that state has an interest stance occurred in several states and in another defendant because the exposure to in deterring its corporations from engag- which defendants are headquartered in that defendant’s asbestos-­containing mate- ing in such fraudulent conduct.” different states, courts often must deter- rials occurred in Wisconsin. The court, The doctrine of dépeçage can help both mine the law that applies to different issues however, applied the law of Missouri to the plaintiffs and defendants. For example, and different defendants. Take for exam- issue of damages. At trial, a verdict was when a dispute involves whether the law of ple a toxic tort exposure case in which the entered against the California defendant a foreign country or the law of the United plaintiff worked for Company A for five that included an award of damages for pain States applies, plaintiffs may argue that the years while living in California and later and suffering. On the appeal, the Califor- law of the foreign country applies to the worked for Company B for 10 years while nia defendant argued that since Califor- determination of liability, but that the law living in Wisconsin. Company A was head- nia law applied to liability, California law of punitive damages of the United States quartered in California, and Company should also determine the measure of dam- should apply since many civil law coun- B was headquartered in Delaware. The ages and therefore the trial court erred in tries do not award punitive damages out- plaintiff was exposed to the same toxins applying Missouri law. The appellate court side of criminal proceedings. Plaintiffs from both companies and was diagnosed upheld the trial court’s determination would argue that U.S. law applies to dam- while retired and living in Missouri with that Missouri law applied to the damages ages when a company is domiciled in the an illness that allegedly occurred from the inquiry, reasoning that Missouri had the United States and made decisions concern- exposures. Applying only California, Wis- most significant relationship to the issue of ing its conduct and warning in the United consin, Missouri or Delaware law might damages because it was the state where the States; however, those factors alone should not be appropriate for all the defendants. decedent resided before death and where not suffice to allow deciding the damages While California law may be the proper law the decedent was diagnosed and treated. under different law than the liability when to apply for Company A, there is no nexus The court held that Missouri had the “pre- the company has had significant contacts to California for Company B. dominant interest in the issue of damages with the place of injury. Several courts have addressed this very for a wrongful death occurring within its issue and have held that different states’ boundaries” and that Missouri public pol- Statutes of Limitation and laws can be applied to different defend- icy favored recovery of certain damages Statutes of Repose ants and different issues in a case. The in a wrongful death action. The court also Another common issue in toxic tort cases process of applying the rules of different noted the ease of determination in applica- that involve choice of law issues is which states to determine different issues is called tion of Missouri law, given that there were jurisdiction’s statute of limitations and dépeçage. See Kilberg v. Northeast Airlines, two defendants at trial with two different statute of repose applies to an action. A 9 N.Y.2d 34 (1961) (applying the Massachu- bodies of law applicable for liability. statute of limitations bars a plaintiff from setts wrongful death statute to the issue In determining which state’s damages bringing an already accrued claim after of liability for the death but applying New law to apply, the court in Goede placed sig- a specified time, while a statute of repose York law to the measure of damages); Ewing nificant weight on the location of the dece- terminates a right of action after a specific v. St. Louis-Clayton Orthopedic Group, Inc., dent’s death, the location of the surviving time even if an injury has not yet occurred. 790 F.2d 682 (8th Cir. 1986) (upholding the plaintiffs and the public policy of the forum Courts have generally viewed statutes of district court’s application of Missouri law state in providing damages for a wrong- limitations as procedural and therefore not to the issue of whether the physician was ful death. When the place of injury is for- subject to conflict of law analyses. Wayne guilty of common law negligence and the tuitous or when an injury resulted from a v. Tennessee Valley Authority, 730 F. 2d district court’s application of Illinois law sudden or isolated incident, courts may be 392 (5th Cir. 1984). Statutes of repose, on to other aspects of the case, but reversing more willing to find that law other than the other hand, are generally character- the court’s application of Illinois law to the the place of injury applies to damages. For ized as substantive provisions and there- issue of collateral estoppel, finding that the example, in Singh v. Edwards Lifesciences fore subject to conflict of law analyses. See, law of the forum state applies to that issue). Corp., 151 Wn. App. 137 (Wash. Ct. App. e.g., Boudreau v. Baughman, 322 N.C. 331, An example of a toxic tort case in which 2009), the court held that the choice of 341 (N.C. 1988); Goad v. Celotex Corp., 831 the court applied dépeçage is Goede v. law analysis favored California law for F. 2d 508, 511 (4th Cir. 1987) (“Statutes of Aerojet General Corp., 143 S.W. 14 (Mo. Ct. purposes of awarding punitive damages repose are meant to be a substantive defini- App. 2004). In Goede, the plaintiff’s sec- because the defendant was headquartered tion of rights as distinguished from a pro- ondary exposure to asbestos occurred in in California, the defect in the product cedural limitation on the remedy used to both California and Wisconsin. The plain- was discovered in California and the deci- enforce rights.”); Wayne, 730 F. 2d at 400– tiff died as a result of her asbestos-­related sion not to recall the product was made in 401 (“Statutes of limitation, though they disease in Missouri. The trial court deter- California. While the plaintiff underwent can have a material effect on the outcome of mined that California law would govern the surgery and was exposed to the defective a case, are usually characterized as proce- issues of liability for one defendant because product in Washington, the court held that dural. Accordingly, the forum’s own statute

For The Defense ■ April 2014 ■ 33 TOXIC TORTS AND ENVIRONMENTAL LAW of limitation is usually applied even though their defective products in Washington, analysis required by New York’s choice- the choice of law analysis dictates that a and therefore, there was a significant rela- of-law principles.”) Discovery, however, is foreign jurisdiction’s substantive law be tionship to Washington. The defendants not always needed to determine the choice applied.”). Some jurisdictions have borrow- argued that the plaintiff was injured in Ore- of law, especially when a plaintiff’s allega- ing statutes to prevent forum shopping for gon while working for an Oregon company tions compel applying a certain jurisdic- the most favorable statute of limitations. A that purchased its products in Oregon, and tion’s law. See Integral Res. (PVT) Ltd. v. borrowing statute allows the forum juris- therefore, Oregon had the most significant Istil Group, Inc., 2004 WL 2758672, at *3 diction to “borrow” a shorter statute of relationship to the case. The court held (D. Del. Dec. 2, 2004) (permitting choice limitations for a cause of action arising in that the factors argued by the defendants of law discovery but then conducting its another state. For example, the Delaware weighed heavily in favor of finding that analysis based on the complaint’s allega- borrowing statute is designed to prevent a the most significant relationship existed tions). Defense counsel should evaluate nonresident from bringing a foreign cause in Oregon and that the Oregon statute of whether there are any choice of law rulings of action in Delaware that the foreign juris- repose applied. In comparing other cases, that need to be made before they pursue a diction statute of limitations precludes but the district court seemed to indicate that motion to dismiss. that the Delaware statute of limitations if the defendants were headquartered in In some jurisdictions it is very impor- does not. See, e.g., Saudi Basic Indus. Corp. Washington, the analysis could have tipped tant to raise the choice of law early or v. Mobil Yanbu Petrochemical Co., 866 A.2d the other way because policy questions risk a presumption that the law of the 1 (Del. 2005); 10 Del. C. §8121. would then come into play. Since a statute forum applies. In The Burlington North- Courts have been willing to apply the of repose other than that of the forum may ern Santa Fe Railway Co. v. Gunderson Inc., statute of repose of a nonforum state even apply in toxic torts cases, defense counsel 235 S.W.3d 287 (Tex. App. 2007), the trial when such application would bar a plain- should review the statutes of repose in all court applied the law of the forum, and the tiff’s claim. See Lawson v. Valve-Trol Co., jurisdictions with a relationship to a case to appellate court upheld that decision, when 81 Ohio App. 3d 1 (1991) (applying Indi- determine if there is any possible basis to the plaintiff failed to request judicial notice ana statute of repose that barred plaintiff’s seek dismissal on that ground. of the law of another state. The defend- right of action); Crisman v. Cooper Indus., ants moved for summary judgment and 748 S.W.2d 273 (Tex. App. 1988) (applying Properly Raising and Noticing argued that the plaintiff’s claims against Florida product liability statute of repose Issues of Conflict of Laws them were barred by the statute of repose. which prevented plaintiff’s wrongful death After determining that there is a conflict The plaintiff replied that Texas law did not claim from ever arising). of law in a case, toxic tort practitioners apply to the claims but did not move the In Caswell v. Olympic Pipeline Co., the must determine when and how to raise the trial court to take judicial notice of any Ninth Circuit upheld summary judgment conflict of law issue with a court. Courts other state’s law. Under Texas law, “[w]hen granted by the district court to the de- often will require parties to brief and argue a party fails to request judicial notice of fendants, finding that the Oregon statute choice of law issues fully in separate fil- the law of another state… Texas courts will of repose applied and therefore the plain- ings before they file motions to dismiss. simply presume that the law of the other tiff’s claims were not actionable. 484 F. This briefing will serve to educate a court state is identical to Texas law.” Id. (quoting App’x 151 (9th Cir. 2012). Under the Ore- on the facts so that a court can engage in Coca-Cola Co. v. Harmar Bottling Co., 218 gon statute of repose, an action must be an informed analysis because a complaint S.W.3d 671, 695 (Tex. 2006)). The trial court brought within eight years, but under the will often lack sufficient facts for a court to granted summary judgment to the de- Washington statute of repose an action make a choice of law determination on its fendants, finding that the statute of repose must be brought before the product’s safe face. For example, in Burdick v. Air & Liq- barred the plaintiff’s claims. It is important useful life has expired. The Washington uid Systems Corp., 2012 R.I. Super. Lexis for defense attorneys to review the law in statute of repose establishes a rebuttable 166 (R.I. 2012), the court held that the com- the relevant jurisdiction as early as possible presumption of 12 years to determining a plaint contained insufficient facts to deter- on receiving a complaint to ensure timely safe useful life. The plaintiff alleged that he mine which law applied at the motion to notice to a court of the potential applicabil- developed leukemia as a result of working dismiss stage. The complaint did not state ity of another jurisdiction’s laws. around gasoline and other petroleum prod- which law the plaintiffs alleged applied and ucts in Oregon. The district court applied implicated the laws of three different states. Conclusion the Washington choice of law analysis, Consequently, the court was unable to rule Returning to the hypothetical discussed which applies the most significant rela- on the motion to dismiss and invited the at the beginning of this article, because tionship test. Caswell v. Olympic Pipeline parties to brief and argue the choice of law the case was brought in California, the Co., 2010 WL 2871122 (W.D. Wash. 2010). issues. See also Speedmark Transporta- forum court’s statute of limitations would When the factors of this test are in balance, tion, Inc., v. Mui, 778 F. Supp. 2d 439, 444 apply, and the court would likely dismiss Washington law analyzes public policy to (S.D.N.Y. 2011) (holding that a choice of law the case because the statute of limitations resolve the issue. The plaintiff alleged that determination was premature on a motion period had expired. If the statute of limi- he was a resident of Washington and that to dismiss because “the record lacks facts tations period had not expired, the court the defendants designed and manufactured necessary to conduct the context-­specific… would need to decide which jurisdiction’s

34 ■ For The Defense ■ April 2014 law applied to damages. While the place of injury was California, there appears to be no other significant relationship to Cal- ifornia because the decedents and their heirs resided in Oregon, and the defendant company was domiciled in Florida with a chemical plant in Mexico. Similar to Goede, the court might place substantial weight on the fact that Oregon had the most sig- nificant contact with decedents and the surviving plaintiffs were residents of Ore- gon. A plausible argument, however, may be made that California law should apply. Arguments for Florida law or Mexican law would be more difficult to make given the limited facts available, but the defendants might argue that Florida or Mexico was where the defendants were domiciled and possibly where the conduct causing the injury occurred. While at first glance, choice of law issues in toxic tort matters, especially in per- sonal injury and wrongful death cases, may seem unworthy of pursuing because of the general presumption that the law of the place of injury will apply, there are many nuances that arise in such cases that suggest a different approach. Upon receiv- ing a case, defense counsel should review all the issues, including statute of limita- tions, statutes of repose, liability issues and damages. Even if the law of the place of injury ends up controlling the liability determination, it is possible that another jurisdiction’s law could control the mea- sure of damages and other issues in a case, and that those laws could favor your client more.

For The Defense ■ April 2014 ■ 35