Presented: Mandamus Update Scott P. Stolley Alex H. Bailey

Transcription

1 The University of Texas School of Law Presented: 21st Annual Conference on State and Federal Appeals June 2-3, 2011 Austin, TX Mandamus Update Scott P. Stolley Alex H. Bailey Scott P. Stolley Alex H. Bailey Thompson & Knight LLP One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas

2 MANDAMUS UPDATE HOT TOPICS AND TRENDS IN MANDAMUS LAW 1. After Columbia, can an appellate court conduct a mandamus review of the reasons given for granting a new trial? In the world of mandamus law, perhaps the hottest topic is the impact of In re Columbia Med. Ctr. of Las Colinas Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) (orig. proceeding). In Columbia, the Texas Supreme Court held that a trial court must give clearly identified and reasonably specific reasons when it decides to set aside a jury verdict and grant a new trial. Id. at 215. Broad explanations for a new-trial order, such as in the interests of justice and fairness, are insufficient. Id. at 206, 215. In so holding, the court explained that although trial courts have significant discretion in granting new trials, such discretion should not, and does not, permit a trial judge to substitute his or her own views for that of the jury without a valid basis. Id. at 212. Columbia left unanswered questions about how far mandamus review of new-trial orders extends. For instance, what constitutes a reasonably specific reason? If in the interests of justice is not enough, what is? And if a court cannot substitute its opinion for the jury s without a valid basis, is mandamus relief available when the reasons given for granting a new trial are clearly identified and reasonably specific, yet facially invalid ( I dislike the cut of defense counsel s suit )? Is mandamus relief also available when the reasons given are specific and facially valid, but are unsupported by the record? Subsequent cases have reached no consensus on these questions. In a 2-1 opinion, the Beaumont Court of Appeals recently held that under Columbia, an appellate court conducting a mandamus review of a new-trial order is concerned only with the process employed by the trial court, not the result. In re United Scaffolding, 315 S.W.3d 246, 251 (Tex. App. Beaumont 2010, orig. proceeding [mand. granted]). Thus, as long as the reasons given for a new-trial order are sufficiently specific to show that the trial court employed the appropriate process in exercising its discretion to grant a new trial, Columbia is satisfied. Id. Applying that principle, the majority deemed the following order specific enough: [T]he Court... orders New Trial based upon: A. The jury s answer to question number three (3) is against the great weight and preponderance of the evidence; and/or B. The great weight and preponderance of the evidence supports a finding that the determined negligence of Defendant was a proximate cause of injury in the past to Plaintiff, James Levine; and/or C. The great weight and preponderance of the evidence supports a finding that the determined negligence of Defendant supports an award of past damages; and/or 1

3 D. In the interest of justice. Id. at , 251. This order replaced the original new-trial order, which the trial court had issued in the interest of justice and fairness, and which the Supreme Court had rejected as insufficiently specific under Columbia. Id. at 247; see In re United Scaffolding, Inc., 301 S.W.3d 661 (Tex. 2010) (orig. proceeding). Justice David Gaultney dissented from the majority s opinion upholding the revised newtrial order. United Scaffolding, 315 S.W.3d at 251. He argued that the revised order was as substantively deficient as the original, as it did no more than state boilerplate conclusions without reasoning. Id. at 252. According to him, the revised order did not comply with Columbia because it failed to establish a valid basis for the trial court s decision to disregard the jury s findings. Id. at Taking a harder line than the Beaumont Court of Appeals, the El Paso Court of Appeals has held that when the reasons given for a new-trial order satisfy Columbia s specificity requirement, there can be no mandamus review of the merits of the grounds stated in the order. In re Toyota Motor Sales, U.S.A., Inc., 327 S.W.3d 302, (Tex. App. El Paso 2010, orig. proceeding [mand. pending]); In re Whataburger Rests., LP, No CV, 2010 WL , at *1 (Tex. App. El Paso Dec. 8, 2010, orig. proceeding [mand. pending]). The Texarkana Court of Appeals, on the other hand, has held that by stating that the trial court must have a valid basis for granting a new trial, the [Columbia] Court is, in effect, authorizing appellate review of the reasons given for the new trial, not just review to ensure specificity. In re Lufkin Indus., Inc., 317 S.W.3d 516, 520 (Tex. App. Texarkana 2010, orig. proceeding [mand. denied]). After so holding, the Lufkin court conducted a review of the several reasons given and concluded that the trial court acted within its discretion with respect to at least one of them. Id. at Based on these opinions, the courts of appeals respective positions seemed fully polarized. But shortly after Lufkin, the Texarkana Court of Appeals further muddied the waters by holding that although Columbia and Lufkin allow some type of review of the reasons given for a new trial order, they do not allow a full review of the sufficiency of the evidence. In re Smith, 332 S.W.3d 704, 708 (Tex. App. Texarkana 2011, orig. proceeding). After Smith, the question is whether there is a middle ground between no review and full review of the reasons given for new-trial orders. Perhaps some clarity is on the horizon. The Supreme Court has granted mandamus review of United Scaffolding and will hear oral arguments. See In re United Scaffolding, Inc. (Case. No ). The Toyota and Whataburger defendants have also each petitioned the Supreme Court for a writ of mandamus. See In re Whataburger Rests., LP (case No ); In re Toyota Motor Sales, U.S.A., Inc. (Case No ). In both cases, the court has requested briefs on the merits. If the court grants review of Toyota, it will consider whether Toyota is entitled to mandamus relief from the trial court s order granting a new trial after the jury found that the 2

4 occupant-restraint system in the Toyota vehicle was not defective. Toyota, 327 S.W.3d at 303. The court granted the new trial in the interest of justice and as a sanction, on the specific ground that during closing argument to the jury, Toyota s counsel referred to testimony that the decedent was not wearing a seatbelt. Id at 304. This evidence had been injected into the record twice (once by the plaintiffs) without objection. In its petition for writ of mandamus, Toyota has argued that (1) plaintiffs own counsel was the first to reveal the previously excluded testimony to the jury, (2) after that first disclosure, that evidence was again put before the jury during the direct examination of a Toyota expert, again without objection, and (3) plaintiffs counsel asked the trial court to prohibit Toyota s counsel from referring to the testimony during closing argument, but the court declined. See Petition for Writ of Mandamus, In re Toyota Motor Sales, U.S.A., Inc. (Case No ). In their response, the plaintiffs made no effort to defend the trial court s ruling, arguing only that Columbia does not allow review of the specific reasons the trial court gave for granting a new trial. See Real Parties in Interest s Response to Relators Petition for Writ of Mandamus, In re Toyota Motor Sales, U.S.A., Inc. (Case No ). If the court grants review in Toyota, some clarity may result with respect to what extent appellate courts can review the merits of the reasons given by a trial court for a new-trial order. That issue s resolution will determine Columbia s long-term impact. If the court endorses the view taken by the El Paso Court of Appeals, the requirement that trial courts give specific reasons for granting a new trial, while perhaps minimally improving transparency, will likely endure only as a toothless formality. Improved transparency without accountability will do little to curb the problem of abusive and standardless granting of new trials. If the court instead concludes that the reasons given for a new-trial order are subject to mandamus review, Columbia will endure as an important check on trial courts discretion to disregard jury verdicts. 2. In Texas actions brought after September 1, 2009, a trial court s refusal to compel arbitration under the Federal Arbitration Act is challengeable by interlocutory appeal. In the past, a party seeking relief from a Texas trial court s denial of arbitration in a dispute subject to the Federal Arbitration Act ( FAA ) had to file a petition for writ of mandamus. In re Merrill Lynch & Co., Inc., 315 S.W.2d 888, 890 (Tex. 200) (orig. proceeding). But in June 2009, the Texas Legislature amended the Texas Civil Practice & Remedies Code to allow an interlocutory appeal in disputes subject to the FAA under the same circumstances that an appeal from a federal district court s order or decision would be permitted under the FAA. TEX. CIV. PRAC. & REM. CODE ; see also In re 24R, Inc., 324 S.W.3d 564, 566 n.1 (Tex. 2010) (orig. proceeding). The new rule applies in all suits brought after September 1, TEX. CIV. PRAC. & REM. CODE ; In re Olshan Found. Repair Co., LLC, 328 S.W.3d 883, 887 n.2 (Tex. 2010) (orig. proceeding). Section unquestionably allows an interlocutory appeal from an order denying a motion to compel arbitration. In re 24R, Inc., 324 S.W.3d at 566 n.1. Less certain, however, is which other types of arbitration orders in FAA cases are now subject to interlocutory appeal. The Texas Supreme Court recently heard oral arguments on whether section permits an 3

5 interlocutory appeal from an order appointing an arbitrator. See CMH Homes, Inc. v. Perez (Case No ). In the opinion under review, the San Antonio Court of Appeals held it does not. CMH Homes, Inc. v. Perez, 328 S.W.3d 592, (Tex. App. San Antonio 2010, pet. granted). Also at issue in CMH Homes is whether the court of appeals, after holding that section was inapplicable, correctly refused to treat the interlocutory appeal as a petition for writ of mandamus. The Supreme Court s decision on that issue will determine whether a party seeking review of an arbitration order should, as a rule, file both a section appeal and a petition for writ of mandamus, or just the appeal. 3. After Prudential, Texas appellate courts continue to reevaluate historic mandamus practices. At the 2008 Conference, Kurt H. Kuhn thoroughly and insightfully discussed the impact of In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (orig. proceeding), the Texas Supreme Court s landmark decision regarding standards for determining whether a party seeking mandamus review has an adequate appellate remedy. Kurt H. Kuhn, Mandamus Is Not a Four- Letter Word, presented at the 18th Annual Conference on State and Federal Appeals, May 29-30, 2008, Austin, Texas. Kuhn provided a statistical comparison of mandamus filings and grants, both before and after Prudential. While a similar statistical analysis is beyond the scope of this paper, two recent mandamus cases support Kuhn s conclusion that mandamus grants have increased after Prudential. But first, a brief review. Before Prudential, the leading case on the standards for granting mandamus review was Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding). Walker affirmed a narrow view of the availability of mandamus review: Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. Id. at 840 (quoting Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989) (orig. proceeding)). In 2004, Prudential announced standards based less on manifest and urgent necessity and more on economy and practicality, all things considered. Of the requirement that the relator demonstrate lack of an adequate appellate remedy, the court explained: The operative word, adequate, has no comprehensive definition; it is simply a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will [grant mandamus].... Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. An appellate remedy is adequate when any benefits to 4

6 mandamus review are outweighed by the detriments. When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate. Id. at 136. While most would agree that Prudential announced a less rigid mandamus standard than Walker (see, e.g., In re Williams, 328 S.W.3d 103, 109 (Tex. App. Corpus Christi 2010, orig. proceeding) (comparing mandamus review under Walker and Prudential)), only time will tell whether Prudential will cause Texas courts of appeals to significantly adjust their historical mandamus practices, especially in cases involving subject matters with long histories of pre- Prudential mandamus jurisprudence. Two recent cases suggest that courts are making adjustments. A. ExxonMobil: Out with the Old The most recent case is In re ExxonMobil Prod. Co., --- S.W.3d ----, 2011 WL (Tex. App. San Antonio Mar. 23, 2011, orig. proceeding). In ExxonMobil, the appellate court considered whether it could grant mandamus relief from the trial court s erroneous refusal to abate the suit based on another court s dominant jurisdiction. Id. at *8. The court began its review by acknowledging that in Abor v. Black, 695 S.W.2d 564 (Tex. 1985) (orig. proceeding): the Supreme Court held mandamus relief is not available to address a trial court s erroneous refusal to abate a suit based on dominant jurisdiction unless there is a conflict in jurisdiction where one of the trial courts issues an order that actively interferes with the other from proceeding. ExxonMobil, 2011 WL , at *9 (citing Abor, 695 S.W.2d at 567). The court further acknowledged that the suit under review did not involve the type of jurisdictional conflict required to trigger mandamus relief under Abor. Nevertheless, the court agreed with ExxonMobil that in light of Prudential, ExxonMobil lacked an adequate remedy by appeal, which warranted mandamus relief. Id. In so holding, the court followed Prudential and its progeny, including In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding) point by point. The court held that in spite of Abor, mandamus relief was appropriate because: (1) the case involved an impairment of the defendant s procedural rights; (2) mandamus review presented the court with the opportunity to give needed and helpful direction to the law; and (3) the trial court s failure to abate would result in an irreversible waste of resources. ExxonMobil, 2011 WL , at * Though Prudential had not expressly overruled Abor, the ExxonMobil court found Abor inconsistent with Prudential s core principles: The Court s holding in Abor, limiting the propriety of mandamus relief in plea in abatement cases to conflicts of jurisdiction, is an example of the type of rigid rule that Prudential rejected. Limiting mandamus relief as per Abor precludes the flexibility of the remedy in plea in abatement cases because Abor fails to account for any case-by-case consideration of the benefits and detriments of mandamus review. 5

7 ExxonMobil, 2011 WL , at * In rejecting Abor, the court also rejected its own precedent that had followed the Abor rule in a similar case decided before Prudential. Id. at *5 (rejecting Coastal Oil & Gas Corp. v. Flores, 908 S.W.2d 517, 518 (Tex. App. San Antonio 1995, orig. proceeding)). A week after deciding ExxonMobil, the San Antonio Court of Appeals relied on its new precedent to reach the same conclusion in a related case In re Corondao Energy E&P Co., L.L.C., ---S.W.3d ----, 2011 WL (Tex. App. San Antonio Mar. 30, 2011, orig. proceeding). ExxonMobil is an example of Texas appellate courts willingness to reevaluate established mandamus practices in light of Prudential. The ExxonMobil court not only rejected a settled rule regarding the availability of mandamus review in a specific category of cases, it effectively declared that a Supreme Court precedent had been overruled. ExxonMobil reveals that after Prudential, at least one court of appeals believes the ballgame has fundamentally changed. B. United Services: Consider the Circumstances In In re United Services Auto. Ass n, 307 S.W.3d 299 (Tex. 2010) (orig. proceeding), the Texas Supreme Court relied on Prudential to grant mandamus relief from the improper denial of a motion for summary judgment. Id. at This despite the longstanding rule that mandamus is generally unavailable when a trial court denies summary judgment, no matter how meritorious the motion. Id. at 314 (quoting In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 469 (Tex. 2008) (orig. proceeding)). To be sure, United Services involved unique circumstances. This is a discrimination case brought under the Texas Commission on Human Rights Act (TCHRA). The case had already been tried to verdict once, only to be reversed by the Supreme Court because the county court that heard the case lacked subject-matter jurisdiction. Id. at After the reversal, the plaintiff (Brite) refiled in district court. Id. at 305. The defendant (USAA) filed a plea to the jurisdiction and a motion for summary judgment, arguing that Brite had failed to file within the TCHRA s two-year time limit. Id. When the district court denied the plea and motion, USAA sought mandamus review, which the San Antonio Court of Appeals denied. But the Supreme Court granted review and after finding that the two-year TCHRA time-limit had indeed expired and that the issue was one of limitations and not jurisdiction considered whether it could grant mandamus relief from the district court s denial of USAA s motion for summary judgment on limitations. Id. While acknowledging the general rule that summary-judgment denials are not subject to mandamus review, the court observed that under Prudential and its progeny: deciding whether the benefits of mandamus outweigh the detriments requires us to weigh public and private interests, recognizing that rather than categorical determinations the adequacy of an appeal depends on the facts involved in each case. 6

8 Id. at 313 (internal quotation marks omitted). In light of the case s lengthy and unusual procedural history, and the prospect of a second futile trial, the court held that mandamus relief was proper and directed the district court to grant USAA s motion for summary judgment. Id. at 314. Exxon-Mobil and United Services indicate that Prudential s impact is real. In light of these cases, practitioners should not simply assume the applicability of longstanding rules regarding mandamus review in specific categories of cases. After Prudential, mandamus is increasingly a question of circumstances. 4. It is easy overlook new Texas Rule of Appellate Procedure 52.3(j). Effective September 1, 2008, the Texas Rule of Appellate Procedure 52.3(j) was amended to change the requirement for verifying a mandamus record: The person filing the petition must certify that he or she has reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record. While this new rule is straightforward enough, it has been lost on many practitioners accustomed to the prior version of Rule 52.3(j), which required that the factual statements contained in a petition for writ of mandamus be verified by affidavit made on personal knowledge by an affiant competent to testify to the matters stated. In re Butler, 270 S.W.3d 757, 759 (Tex. App. Dallas 2008, orig. proceeding). Practitioners have often continued to comply with the old affidavit requirement (which no longer applies), while failing to comply with new Rule 52.3(j). See, e.g., In re Butler, 270 S.W.3d at 759; In re Norman, No CV, 2011 WL (Tex. App. Houston [1st Dist.] Jan. 27, 2011, orig. proceeding); In re Morgan, No CV, 2011 WL (Tex. App. Amarillo Jan. 13, 2011, orig. proceeding); In re Islamorada Fish Co. Tex., L.L.C., No CV, 2010 WL (Tex. App. Dallas Mar. 22, 2010, orig. proceeding); and dozens of others. A petition that does not comply with Rule 52.3(j) can be denied for that reason, as happened in each of the cases just cited. Thus, in addition to heeding the other procedural requirements described in rule 52, practitioners should pay careful attention to rule 52.3(j) s certification requirement. 5. Mandamus can be used to prevent discovery of net-worth information where punitive damages are not recoverable. A recent mandamus decision demonstrates that although a trial court s ruling on a disputed issue of law may not be independently subject to mandamus review, the issue may become reviewable if the trial court relies on the ruling to compel discovery that would otherwise be prohibited. In In re Islamorada Fish Co. Tex., L.L.C., 319 S.W.3d 908 (Tex. App. Dallas 2010, orig. proceeding), Islamorada was sued under the Dram Shop Act for allegedly serving excessive amounts of alcohol to an individual who was later involved in a car accident that injured the plaintiffs. Id. at 910. In requests for production, the plaintiffs sought 7

9 information about Islamorada s net worth. Id. Islamorada objected, arguing that its net-worth information was irrelevant because punitive damages were not recoverable. Id. Islamorada also filed a motion for summary judgment arguing that punitive damages are not recoverable in claims filed under the Dram Shop Act. Id. Concluding that punitive damages are recoverable under the Dram Shop Act, the trial court denied Islamorada s motion for summary judgment. Id. Based on that ruling, the trial court then granted the plaintiffs motion to compel Islamorada to provide information about its net worth. Id. In the ensuing mandamus proceeding, the Dallas Court of Appeals held that under the specific facts of the case, the trial court s ruling that punitive damages were recoverable was wrong, and therefore, the order requiring Islamorada to produce information about its net worth was an abuse of discretion. Id. at The plaintiffs claimed that mandamus review was improper. Id. at 911. They argued that the proceeding was simply a disguised interlocutory appeal from the denial of Islamorada s motion for summary judgment on the recoverability of punitive damages, and that mandamus review of orders denying summary judgment is not permitted. Id. The court disagreed, explaining that although the mandamus proceeding ultimately required the court to address issues raised in Islamorada s summary-judgment motion, Islamorada sought mandamus relief not from the order denying summary judgment, but from the subsequent order compelling discovery. Id. For that reason, and because the benefits of mandamus review outweighed the detriments, review was proper. Id. at 913. Islamorada yields two important takeaways. First, the decision confirms that information about a defendant s net worth, a frequent topic of discovery requests, is not discoverable when punitive damages are not recoverable. Second, the decision demonstrates that while a trial court s ruling on a disputed question of law may not typically be subject to mandamus review, it may become so if it violates the scope of permissible discovery especially if the expanded scope would include sensitive financial information. 6. Mandamus can be used to prevent pre-suit discovery abuse. A recent Texas Supreme Court decision demonstrates that mandamus can be a powerful tool to prevent discovery abuse, even before suit is filed. In In re John Does 1 & 2, --- S.W.3d ----, 2011 WL (Tex. Apr. 15, 2011) (orig. proceeding), the court held that a court may not order pre-suit discovery by agreement of the witness over the objections of other interested parties without making the findings required by Rule 202.4(a) of the Texas Rules of Civil Procedure. Id. at *1. PRK Enterprises sought information from Google about the identities of two bloggers who used Google s services, and whom PRK wished to sue. Google agreed to respond to PRK s subpoena duces tecum. Id. It also notified the bloggers of the subpoena as required by federal law. Id. The bloggers moved to quash the subpoena. But the trial court granted PRK s motion to compel over the bloggers objection. Id. After the court of appeals denied mandamus relief, the Supreme Court granted mandamus review and held that the trial court abused its discretion by ordering pre-suit discovery without making findings required by Rule Id. at *2. Under Rule 202.4, a court must order a pre- 8

10 suit deposition to be taken if, but only if, it finds that: (1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or (2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure. The trial court did not make either of those findings, and its obligation to do so was not waived by Google s agreement to comply with the subpoena duces tecum. Id. Nor could the required findings be implied in support of the trial court s order. Id. The takeaway from John Does is that trial courts cannot give prospective litigants free rein to use Texas s discovery rules to discover their claims. A court that allows pre-suit discovery to go forward without affirmatively determining that such discovery serves a legitimate purpose can be held accountable through mandamus. 7. The Supreme Court identifies the proper mandamus respondent. The Texas Supreme Court recently resolved a question that is usually simple, but that circumstances can quickly turn perplexing: Who is the correct mandamus respondent? In cases with only one judge, there is of course only one answer. But where multiple judges are involved as often happens in counties with a central docket like Bexar County there may be several candidates to be the respondent. The court addressed this issue in In re Schmitz, 285 S.W.3d 451 (Tex. 2009) (orig. proceeding). In Schmitz, shortly after oral arguments on the ruling under review (a denial of the relators motion to dismiss), the judge of the 288th District Court in Bexar County, where suit was filed, was replaced. Id. at 453. The court explained that this would normally require abatement of the mandamus proceeding for reconsideration, since mandamus will not issue against a new judge for what a former one did. Id. (quoting In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228 (Tex. 2008)). But because of Bexar County s central docket system, the judge who had been replaced neither heard the relators motion nor issued the ruling under review. Id. Instead, another Bexar County judge who remained in office did. Id. This raised the question whether the proper mandamus respondent was the presiding judge who had left or, instead, the remaining judge who issued the order. Courts of appeals had split on the issue: Some have held that the respondent in a mandamus proceeding should be the presiding judge rather than the judge who signed the challenged order. Others have held the opposite that the respondent should be the judge who signed the order rather than the presiding judge. One has simply addressed the writ to both. Id. Finding that the more practical rule is to treat the judge who signed the order as the respondent, the court held that abatement was not required since the judge who signed the order under review was still in office. Id. at

11 In so holding, the court noted that the issue was ultimately less-than-critical: Of course, the writ must be directed to someone, but in the final analysis any judge sitting in the case after mandamus relief is granted would be compelled to obey it. Id. at The Fifth Circuit grants mandamus relief from the Western District s refusal to reconsider a MDL court s pretrial ruling. On an issue of first impression, the Fifth Circuit recently held that it could grant mandamus relief from a district court s refusal to reconsider a Multidistrict Litigation (MDL) court s pretrial ruling. In re Ford Motor Co., 591 F.3d 406, (5th Cir. 2009) (orig. proceeding). The plaintiffs were Mexican citizens who were injured in Mexico in accidents involving Ford vehicles and Firestone tires. Id. at 408. They sued Ford and Firestone (the petitioners) in Texas state court. Id. The defendants removed the case to the Western District of Texas, and the case was then transferred to the MDL court in Indiana, which had been established to deal with over 700 similar suits. Id. In the MDL court, the defendants sought dismissal on forum non conveniens (FNC) grounds, claiming that Mexico was an available and more appropriate forum. Id. at 409. In response, the plaintiffs insisted that Mexico was not an available forum. Id. The MDL court agreed and denied the defendants motion to dismiss. Id. The MDL court then ordered a conditional return of the case to the Western District. The defendants asked the MDL court to reconsider or, in the alternative, to certify the issue for interlocutory review. Id. But six weeks after returning the case to the Western District, the MDL court dismissed the defendants motions as moot. Id. The defendants then asked the Western District to reconsider and overrule the MDL court s FNC ruling. Id. at 410. The Western District refused, holding that a MDL court s pretrial rulings should be reconsidered [by the transferor court], if at all, under only the most extraordinary circumstances. Id. (quoting the Western District). The defendants then sought mandamus review from the Fifth Circuit. The Fifth Circuit granted review and held that the Western District abused its discretion in refusing to overrule the MDL court s FNC ruling. Id. at 417. The court first held that although a transferor court should rarely reverse a MDL transferee court s pretrial decisions, reversal is warranted when the law of the case doctrine allows a court to revisit determinations of an earlier court. Id. at 411. Such circumstances include when the earlier court s decision was clearly erroneous and would work manifest injustice. Id. at 412. The Fifth Circuit held that this was the case here, since in denying the defendants FNC motion, the MDL court ignored abundant, clear precedent that Mexico is an available forum in similar tort cases. Id As a result, the Western District should have overruled the MDL court s FNC decision. Id. at 414. The Fifth Circuit then determined that mandamus was appropriate because the Western District s refusal to overrule the MDL court s patently erroneous decision was a clear abuse of discretion, and the defendants lacked other adequate means to obtain relief. Id. at Ford Motor illustrates that the tool of mandamus can sometimes be successful where least expected. To reach its decision, the Fifth Circuit had to pierce two layers of heightened 10

12 deference: the trial court s duty of deference to the MDL court s pretrial rulings, and the appellate court s reluctance to grant mandamus review unless there are exceptional circumstances. Id. at 411, DALLAS