On January 17, 2020, the US Supreme Court granted petitions for writs of certiorari and consolidated two products liability cases on appeal from the Montana and Minnesota state supreme courts involving the Ford Motor Company and automobile accidents in those states. The outcome of these consolidated cases is of vital interest to aviation manufacturers and others in the aviation industry, as they address one of the hottest topics in aviation accident litigation over the last few years – the circumstances under which a court has specific personal jurisdiction over a foreign corporation, where no general personal jurisdiction exists.

In both cases the state courts found that they could exercise specific jurisdiction over Ford despite the fact that Ford's contacts with the states did not cause the injuries to the plaintiffs. The vehicles were not designed, manufactured nor originally sold by Ford in these two states.

In one of the cases, Ford v Bandemer, the question presented to the Supreme Court in Ford's petition for a writ of certiorari was as follows:

The Due Process Clause permits a state court to exercise specific personal jurisdiction over a non-resident defendant only when the plaintiff's claims "arise out of or relate to" the defendant's forum activities....The question presented is: Whether the "arise out of or relate to" requirement is met when none of the defendant's forum contacts caused the plaintiff's claims, such that the plaintiff's claims would be the same even if the defendant had no forum contacts.

In the decisions below, the Montana and Minnesota state supreme courts declined to adopt a "causal standard" for the exercise of specific personal jurisdiction under which Ford's contacts with the state must have caused the plaintiff's claims. The US Supreme Court previously has held, in Walden v Fiore, that "the defendant's suit-related conduct must create a substantial connection with the forum State." Notably, the briefing by both petitioner Ford and by the respondents included citations to aviation cases in which specific jurisdiction was at issue, and typically where jurisdiction was not found.

Ford argued in its petitions that four different approaches to the "arise out of or relate to" requirement have been adopted in state and federal courts: (1) no causal connection required (adopted by the highest courts of the District of Columbia, Minnesota, Montana, Texas, and West Virginia, and by the Federal Circuit); (2) but-for causal connection required (adopted by the federal Fourth, Ninth and Eleventh Circuits and by the highest courts of Arizona, Massachusetts, and Washington); (3) stronger connection required than but-for causation (adopted in various formulations by the federal First, Third, Sixth and Seventh Circuits, and the high courts of Nevada, New Hampshire, Oklahoma and Oregon; and (4) unspecified causal connection required (adopted in various formulations by the federal Second, Eighth, and Tenth Circuits and the Supreme Court of Alabama).

Ford argued that the Montana and Minnesota Supreme Courts erred when they concluded that specific jurisdiction could be exercised over Ford under the circumstances of the two accidents, and urged the US Supreme Court to grant its petition for a writ of certiorari to provide the needed clarity for how closely a defendant's forum contacts must be connected to a plaintiff's claim for the "arise out of or relate to" requirement to be met.

In contrast, in Bandemer, respondent's formulation of the question presented was much different than Ford's formulation:

Whether petitioner Ford Motor Company is subject to specific personal jurisdiction in Minnesota when one of its cars injures a Minnesota resident in Minnesota, where Ford has deliberately targeted the Minnesota market and sold hundreds of thousands of cars in Minnesota, but where the particular car causing the injury was originally sold in a neighboring state.

And in the Montana case, respondent's formulation of the question presented had a slightly different approach, with emphasis on the causation issues:

Should the due-process standard for establishing personal jurisdiction incorporate a but-for or proximate causation requirement derived from tort law, such that Ford Motor Company cannot be held to answer in a forum for injuries caused by a product that it advertises and sells in that forum unless the particular individual product that caused the injury can be traced to Ford's direct contacts with the forum state?

Respondents unsuccessfully argued that Ford's petition should be denied, inter alia, because "no federal court of appeals or state high court has accepted Ford's argument for importing a rigid tort- based causation standard into due process," and because the decisions below did not reflect a split requiring resolution now, but instead were a "straightforward application of this Court's personal jurisdiction precedents." Respondents focused upon precedents applying stream of commerce analysis, such as from West Virginia's highest court, which has held that "focus in a stream of commerce ... analysis is not the discrete individual sale, but, rather, the development of a market for products in the forum."

Amici curiae briefs in support of Ford's petition were submitted by the Chamber of Commerce of the United States of America, the National Association of Manufacturers, the American Tort Reform Association, and the Alliance of Automobile Manufacturers.

We have heard that at least one state appellate court recently hearing arguments about specific jurisdiction in an aviation case specifically referenced these Ford cases now pending before the US Supreme Court and the importance of the resolution of the Ford cases to the jurisdiction issues before that state court.

How the Supreme Court rules in these automobile cases could have a dramatic effect on recently observed trends in aviation litigation, including successful jurisdiction challenges by defendants and the filing of multiple protective actions by plaintiffs in the absence of applicable "savings statutes."

Ford filed its petitioner's brief in the consolidated cases on February 28. The United States filed an amicus curiae brief supporting Ford's challenge to specific jurisdiction under settled law of jurisdiction, but urging the Supreme Court not to adopt Ford's proximate-cause test for specific jurisdiction. Seven additional amicus briefs in support of petitioner, including one joined by the General Aviation Manufacturers Association, have been filed with the Court as of March 6. The consolidated cases have been listed for one hour of oral argument on April 27.

We will report further about developments in upcoming issues of Aviation Happenings as circumstances warrant. Ford Motor Co. v. Bandemer, No. 19-369, 205 L. Ed. 2d 215, -- S Ct. -- , 2020 U.S. Lexis 536 (2020). Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., No. 19-268, 205 L. Ed. 2d 219, -- S. Ct. -- , 2020 U.S. Lexis 533 (2020)

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