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When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it.
The instant case involves two consolidated appeals that both raise concerns about appellate advocacy.
The first appeal was from an order to transfer a case from the U.S. District Court for the Southern District of Indiana to the courts of Mexico—and was one of many offshoots of litigation arising out of vehicular accidents allegedly caused by defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. Apart from an implicit concession of the circumstances in Abad v. Bayer Corp. being nearly identical to the instant case, Judge Barker's careful and thorough analysis demonstrates that she was acting well within her discretion in deciding that the Mexican courts would be a more appropriate forum for the adjudication of this lawsuit by Mexican citizens arising from the death of another Mexican citizen in an accident in Mexico.
The second appeal was an offshoot of the other multidistrict litigation that gave rise to the Abad decision—suits against manufacturers of blood products used by hemophiliacs, which turned out to be contaminated by HIV (the AIDS virus). This particular suit was brought by Israeli citizens infected by the contaminated blood products in Israel. The defendants, invoking forum non conveniens, moved to transfer the case to the courts of Israel and Judge Barker obliged, precipitating the appeal. The issue is controlled not just by Abad but also by Chang v. Baxter Healthcare Corp., 599 F.3d 728 (7th Cir. 2010), which arose from the same multidistrict litigation concerning blood products that had given rise to Abad and presented the identical issue as this case does.
Notably, both appeals initially referred to established precedent (Abad for both, and Chang v. Baxter Healthcare Corp. for the second) in the trial court, but in their reply briefs, barely discussed said precedents.
Did the appellants err in glossing over established precedent in their appeals?
The two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which the Court affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable. The ostrich is a noble animal, but not a proper model for an appellate advocate. The "ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless."