Products Liability Litigation since the Passage of NAFTA and the Unintended Consequences

Article excerpt

I.   INTRODUCTION

II.  THE DEVELOPMENT AND SUCCESS OF THE NORTH
     AMERICAN FREE TRADE AGREEMENT

III. FORUM NON CONVENIENS: DEVELOPMENT AND
     APPLICATION IN THE UNITED STATES

IV.  THE RELATIONSHIP BETWEEN DAMAGES AND FORUM
     NON CONVENIENS
     A. Products Liability and Damages in the United
        States
     B. Products Liability and Damages in Mexico
     C. Why Plaintiffs from Mexico Find the United States
        Attractive
     D. Defendants, Forum Non Coveniens, and Damages

V.   AMERICAN DEFENDANT'S USE OF FORUM NON
     CONVENIENS TO AVOID OR REDUCE THEIR LIABILITY
     AND ITS CONSEQUENCES FOR AMERICA

VI.  POSSIBLE SOLUTION

VII. CONCLUSION

I. INTRODUCTION

Imagine it is a typical Saturday afternoon. You and your child have planned to escape the sticky heat of Houston by taking refuge at the neighborhood pool. Imagine that while en route to the pool you are involved in a minor car accident that causes the car's airbags to deploy. Imagine that your child is tragically killed as a result of the car being equipped with a defective airbag, and imagine you bring a successful suit against the manufacturer of the airbag. It would not be a stretch to imagine that the judgment against the manufacturer would be several thousand dollars. (1)

Now imagine that you and your child are not U.S. citizens and you are not in Houston, Texas, but rather you and your child are citizens of Mexico in Mexico City seeking to escape the same heat, driving the same car, with the same defective air bag to a nearby lake. Imagine you also get into a minor car accident and the same defective airbag kills your child. Imagine you too bring a successful suit against the same manufacturer, but the maximum award for the loss of your child's life is $2500 as opposed to the several hundreds of thousands of dollars an American citizen would receive. (2)

While it may seem unfathomable to American citizens that a manufacturer would only be liable for $2500 for such an accident, it is a hard reality for Mexican citizens. (3)

Since the birth and passage of the North American Free Trade Agreement (NAFTA), there has been an expansion of trade within the borders of North America. (4) Indeed, NAFTA's removal of the many trade barriers that plagued the signatory nations has proven to be beneficial for the U.S. economy, (5) but it has also created what should have been a foreseeable problem. (6) The increased flow of goods between the United States and Mexico has coincided with increased products liability litigation. (7) In fact, "product's liability is today recognized as having important international dimensions, for there literally are not physical boundaries that a given consumer product may not cross during the course of its manufacture, marketing, distribution and ultimate use by the consumer." (8)

In particular, Mexican plaintiffs who suffer injuries from defective American-made products desire to have their disputes against the American manufacturers of these products settled in the United States, while the American manufacturers aggressively fight to keep these disputes out of the United States. (9)

Mexican plaintiffs, who have knocked on the door of the American judicial system to have their claims heard, have traditionally been sent home by American defendants' use of forum non conveniens. (10) Unfortunately, the application of this doctrine has undermined the United States' deterrence interest in these cases. (11)

Part II of this Comment will briefly discuss the development of NAFTA and highlight how it has increased trade among the signatory nations.

Part III of this Comment will trace the development of the doctrine of forum non conveniens and discuss how it has been implemented as a blockade for foreign plaintiffs trying to gain access to the American judicial system.

Part IV of this Comment will examine the damages available in the United States and Mexico. …