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Successfully suing foreign manufacturers: a products liability case against a foreign defendant presents a variety of hurdles, both procedural and substantive. This step-by-step guide will help you map a course to success in your case - and justice for your client.

Article Excerpt
As the world economy becomes more fully integrated, Americans are buying more products made abroad. One recent report estimated that China manufactures 80 percent of children's toys sold in the United States, while as few as 10 percent are made here. (1) Recent contamination scares have also revealed that many other products--including toothpaste, pet foods, and pharmaceuticals such as the anticlotting agent heparin--are imported from foreign sources. (2)

Products made outside the United States are sometimes designed and manufactured in environments with fewer regulations and less-stringent legal requirements to ensure product safety. When these products harm U.S. citizens, getting compensation can pose unique and daunting challenges.

American courts and lawyers have long wrested with the fundamental question: What is the role of the American legal system in providing redress when defective foreign products cause harm in the United States? While this is an interesting philosophical and public policy question, it is also a relevant question for trial lawyers. What can a lawyer do when a parent says, "My child was injured by a defective toy made in a foreign country?"

Prevailing over a foreign defendant presents a variety of hurdles, each warranting threshold and ongoing analysis as the litigation proceeds. Specifically, suing foreign defendants raises the following issues: whether the court can properly exercise personal jurisdiction over the foreign defendant; how to effect service of process; how to overcome motions to dismiss based on forum non conveniens; and how to conduct discovery from the foreign sources.

Initial concerns

Getting compensation for a client who has been injured by a foreign product requires a threshold analysis of two related questions. First, does an American court have personal jurisdiction over the defendant? Second, is the defendant amenable to service of process?

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Answering these questions definitively is difficult at the outset of litigation, but understanding the framework a court will apply to the analysis will help you evaluate the likelihood of meeting these burdens.

The ever-shifting issue of personal jurisdiction. Personal jurisdiction is the power of a court to render a judgment against a specific defendant. (3) All states have enacted statutes or rules for exercising jurisdiction over nonresident defendants, including foreign defendants. (4) Although the language of the various state "long-arm" statutes differs, such provisions can extend the court's personal jurisdiction only to the due process limits that the U.S. Constitution permits. (5)

American courts have struggled with defining the limits of personal jurisdiction over a foreign defendant. A brief review of the winding path the law has taken historically will help a practitioner better navigate this area's current jurisprudence.

Until the mid-20th century, the widely held view was that a court's jurisdiction extended no further than to the boundaries of the state's territory. (6) As international commerce expanded and industry increased worldwide, courts developed a more expansive concept of personal jurisdiction.

Twentieth-century court attempts to fairly assess constitutionally proscribed limits yielded vague concepts labeled with precise-sounding names, such as "minimum contacts" and "purposefully avail." (7) These phrases proved confusing to law students and mostly unhelpful to practitioners deciding whether and where to bring suit.

The expansive notion of personal jurisdiction peaked with the Supreme Court's decision in World-Wide Volkswagen v. Woodson, which set forth a two-pronged approach for determining when an assertion of personal jurisdiction is warranted. First, the defendant must have purposefully created minimum contacts with the forum ("purposeful contacts") such that the defendant should "reasonably anticipate being haled into court there" (8) and, second, the exercise of jurisdiction must be "reasonable." (9)

Although the relative weight of each prong of the analysis shifted in later cases, (10) contemporary courts generally apply the two-pronged World-Wide Volkswagen framework when deciding whether to exercise personal jurisdiction over a foreign defendant. In a later plurality opinion, Justice Sandra Day O'Connor introduced...

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