1

Supreme Court of Georgia. Farm Bureau Mut. Ins. Co. v. Williams, 266 Ga.App. 540, 541, n. 4, relationship” 6 to the dispute, based upon several sets of factors. 16
DOWIS et al. v. MUD SLINGERS, INC. et al. 597 S.E.2d 430 (2004). Subsequently, due in part to an attempt to Am.Jur.2d Conflict of Laws § 128. The appellants Dowis urge that
No. S05G0336. accommodate the increased mobility of the population and Georgia join this group of states and adopt the “most significant
Decided: October 24, 2005 interstate and international commerce, other approaches emerged relationship” test of the Restatement (Second) of Conflict of Laws,
Ronald P. Jayson, Decatur, for Appellants. Gregory T. Presmanes, which were perceived to be less territorial. Hataway v. McKinley, and thus, allow them under Missouri law to proceed with their
Amy Rogers Perkins, Bovis, Kyle & Burch, LLC, Atlanta, for Appellees. 830 S.W.2d 53, 57 (Tenn. 1992). These approaches have gained Georgia lawsuit against Mud Slingers and Graves. But it is well-
This Court granted certiorari to the Court of Appeals in Dowis v. Mud acceptance in deciding which state's substantive law should settled that Georgia will continue to adhere to a traditional conflict
Slinger Concrete, 269 Ga.App. 805, 605 S.E.2d 615 (2004), to apply.2 16 Am.Jur.2d Conflict of Laws § 124. The first such of laws rule until a better approach is found. Convergys Corp. v.
consider whether the conflict of laws rule lex loci delicti should be approach is based upon a concept of “governmental interest.” 3 Id. Keener, 276 Ga. 808, 812, 582 S.E.2d 84 (2003);  General Telephone
retained in Georgia. For the reasons which follow, this Court will This approach, developed by Professor Brainerd Currie, involves an Co. of the Southeast v. Trimm, 252 Ga. 95, 96, 311 S.E.2d 460 (1984).
not abandon the traditional rule. analysis of the respective interests of the involved states to So the initial question becomes whether the approach of the
determine the law that most appropriately applies to the issues in Restatement (Second) of Conflict of Laws is superior to the
Johnny Edwin Dowis (“Dowis”), a Tennessee resident, was hired by a the case;  controlling effect is given to the law of the jurisdiction traditional rule utilized in Georgia.
Missouri corporation, Mud Slingers, Inc. (“Mud Slingers”), whose which has the greatest concern with the specific issue raised in the
president is Michael Clement Graves (“Graves”), to hang large sheets litigation, unless a public policy exception dictates a contrary result. The doctrine of lex loci delicti has served the resolution of conflict of
of precast plaster molding at a national chain hotel in Roswell, 16 Am.Jur.2d Conflict of Laws § 129;  see Brainerd Currie, The laws issues in tort actions in this State for nearly 100 years. See
Georgia. Dowis was injured at the Roswell project when he fell four Disinterested Third State, 28 Law and Contemporary Problems 754 Southern Railway Co. v. Decker, 5 Ga.App. 21, 62 S.E. 678 (1908). It
stories from the basket of a telescopic boom forklift operated by (1963). Specifically, this theory mandates that a court first identify is desirable to have stability and certainty in the law;  therefore, stare
Graves. the specific law in each state bearing upon the legal issue in dispute, decisis is a valid and compelling argument for maintaining the
then determine the precise policies which the respective laws were doctrine. Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975);  see
designed to serve, and finally, that the court examine the also In re J. M., 276 Ga. 88, 91, 575 S.E.2d 441 (2003) (Carley, J.,
Mud Slingers had workers' compensation insurance in Missouri,
relationship of each jurisdiction with the litigation and determine concurring). Moreover, as appellants acknowledge, lex loci delicti
where Dowis filed his claim and received benefits. Dowis later filed
whether the application of a particular state's law would be has the virtues of consistency, predictability, and relative ease of
this tort action in Georgia seeking damages against Mud Slingers and
consistent with the purposes identified as supportive of that law. application. See Fitts v. Minnesota Mining & Mfg. Co., 581 So.2d
Graves. Dowis argued that, under Missouri's workers'
Hataway v. McKinley, supra at 58, citing Gregory E. Smith, Choice of 819 (Ala.1991);  Mills v. Quality Supplier Trucking, 203 W.Va. 621,
compensation law, he could collect benefits and bring a tort action
Law in the United States, 31 Hastings L.J. 1041, 1047 (1987);  B. 510 S.E.2d 280 (1998);  Paul v. National Life, 177 W.Va. 427, 352
against Mud Slingers and/or Graves. Applying the exclusive remedy
Currie, Selected Essays on the Conflict of Laws (1963). S.E.2d 550 (1986).
provision of the Georgia Workers' Compensation Act, OCGA § 34-9-
11 et seq., and the lex loci delicti rule regarding the applicable
substantive law, the trial court granted summary judgment to the Another approach is that of “choice-influencing Appellants and other opponents of the rule criticize its perceived
defendants. The Court of Appeals affirmed the grant of summary considerations” 4 espoused by Robert A. Leflar. Under this theory, rigidness and argue that its strict application is insufficient to address
judgment, holding that lex loci delicti and the consequent application five factors are examined:  (1) predictability of result;  (2) the complexities of modern litigation and can lead to unjust results,
of Georgia's exclusive remedy provision precluded Dowis from maintenance of the interstate and international order;  (3) in that the results may be “unrelated to the contemporary interests
maintaining his tort action in Georgia. In so doing, the Court of simplification of the judicial task;  (4) advancement of the forum's of the states involved or the realistic expectations of the parties.”
Appeals correctly noted that this Court has addressed the issue of governmental interest;  and (5) application of the better rule of law. First Nat. Bank in Fort Collins v. Rostek, 182 Colo. 437, 514 P.2d 314,
the viability of the rule of lex loci delicti and has continued to apply Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 317 (1973). But such criticism ignores several salient facts. As
it. Sargent Indus. v. Delta Air Lines, 251 Ga. 91, 303 S.E.2d 108 41 N.Y.U.L.Rev. 267 (1966);  Robert A. Leflar, Conflicts Law:  More on appellees point out, some courts in other jurisdictions have been
(1983);  see also Mullins v. M.G.D. Graphics Systems Group, 867 Choice-Influencing Considerations, 54 Cal. L.Rev. 1584 (1966). motivated to depart from the traditional rule in order to redress
F.Supp. 1578 (N.D.Ga.1994). perceived unjust results by applying their own law. See, e.g., Mellk
A third alternative to the traditional doctrine is lex fori, which v. Sarahson, 49 N.J. 226, 229 A.2d 625 (1967);  Chambers v. Dakotah
There are several principle approaches to the resolution of conflict of provides that the rights and liabilities of the parties are governed by Charter, 488 N.W.2d 63 (S.D. 1992). In fact, the first departure by a
laws issues in tort cases. 16 Am.Jur.2d Conflict of Laws § 124. The the law of the forum.5 Hataway v. McKinley, supra at 58. sister state from the use of lex loci delicti accomplished the
traditional approach, frequently referred to as the “vested rights” application of the law of that state. See Babcock v. Jackson, 12
approach, was set forth in the Restatement (First) of Conflict of Laws Finally, a majority of the states that have abandoned the rule of lex N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963). By contrast,
and established the rule of lex loci delicti.1 See ATLA-TORT § 3:21. loci delicti have embraced the formulation expressed in the appellants are asking this Court to abrogate its long-used conflict of
Under this traditional rule, a tort action is governed by the Restatement (Second) of Conflict of Laws, which calls for an laws rule in order to bypass Georgia law. Furthermore, the criticism
substantive law of the state where the tort was committed. Georgia assessment of which jurisdiction has the “most significant glosses over the fact that the courts of this State have the power to
ameliorate the sometimes seeming harshness of the rule when
 2

public policy considerations dictate that they do so. See Alexander Finally, Section 146 specifically addresses personal injury actions: The very flexibility of the approach of the Restatement (Second) has
v. General Motors Corp., 267 Ga. 339, 478 S.E.2d 123 (1996);  Karimi proved to be problematic. There are those who have criticized it as
v. Crowley, 172 Ga.App. 761, 324 S.E.2d 583 (1984). In an action for a personal injury, the local law of the state where the a tool for courts to simply engage in “contact counting” without
injury occurred determines the rights and liabilities of the parties, consideration of what is espoused in the Restatement (Second), that
Appellants also go so far as to assert that the rule of lex loci delicti is unless, with respect to the particular issue, some other state has a is, the interests and policies of the states in question. Hataway v.
premised upon “absolute fortuity,” in that the place of the incident more significant relationship under the principles stated in § 6 to the McKinley, supra at 58, citing Gregory E. Smith, Choice of Law in the
giving rise to the litigation is an entirely fortuitous factor. But this occurrence and the parties, in which event the local law of the other United States, 31 Hastings L.J. at 1046. It has been said to have
ignores the reality that the place of an allegedly tortious act is not state will be applied. “indeterminate language and lack of concrete guidelines.” Paul v.
irrelevant to the conflict issue, in that a state has an interest in National Life, supra at 553. Others find it:
wrongs committed within its boundaries. The crux of the matter in This layered analysis has been described as “eclectic” because it
regard to criticism of the traditional rule is the common underlying represents a combination of several choice-of-law methodologies. has the irony of dominating the field while bewildering its users.
misconception that the resolution of a conflict of laws in complex James P. George, False Conflicts and Faulty Analyses:  Judicial Misuse The result is a set of choice-of-law decisions so lacking in uniformity
litigation requires an equally complicated mechanism to do so. of Governmental Interests in the Second Restatement of Conflicts of that the Second Restatement's balancing test has become chimeric,
Laws, 23 Rev. of Litig. 489, 519 (Summer 2004). It has been said to taking on vastly different forms in different courts. Erratic
The approach taken by the Restatement (Second) of Conflict of Laws function like a code-that is, for any given problem, several Second applications may be partly due to its code-like function, which can
(1971) certainly fits a description of complexity. It is expansive;  it Restatement sections are likely to apply. Id. This is in contrast to require the application of two or more black letter sections, each
provides a multi-step procedure for making the determination of Restatements in other areas of law which tend to pronounce fairly with multiple analytical steps․Second Restatement adoptions
which state's law should prevail. Section 145 provides the general discrete rules. Id. The approach of the Restatement (Second) of necessarily assume different forms in different states, even without
principle for determining the relevant contacts: Conflict of Laws has been described as working through three related aberrational applications.
(1) The rights and liabilities of the parties with respect to an issue in functions, “in the reverse order of their best use.” Id. As is evident,
tort are determined by the local law of the state which, with respect Section 6, which is the consideration most identified with the most- James P. George, False Conflicts and Faulty Analyses:  Judicial Misuse
to that issue, has the most significant relationship to the occurrence significant-relationship test, has two components. Id. of Governmental Interests in the Second Restatement of Conflicts of
and the parties under the principles stated in § 6. Laws, 23 Rev. of Litig. 489, 491-492 (Summer 2004).
(2) Contacts to be taken into account in applying the principles of § Section 6(1) gives dispositive priority to the forum's statutory choice-
6 to determine the law applicable to an issue include: of-law rules. If none apply, section 6(2) lists seven nonexclusive The adoption of the Restatement (Second) approach has not brought
(a) the place where the injury occurred, policies that may identify the state having the most significant certainty or uniformity to the law. Fitts v. Minnesota Min. & Mfg.
(b) the place where the conduct causing the injury occurred, relationship to the dispute: ․ Co., supra at 823. Quite the contrary. As the Supreme Court of
(c) the domicile, residence, nationality, place of incorporation and Alabama noted,
place of business of the parties, and
The second functional component is a set of three general principles
(d) the place where the relationship, if any, between the parties is
for torts, contracts, and property. The general principles for torts Some state courts routinely list [the Restatement's] relevant sections
centered.
and contracts list contacts “to be taken into account in applying the in their opinions and try to follow them;  this task is easiest when the
These contacts are to be evaluated according to their relative
principles of § 6.” ․ The Second Restatement's third functional case is controlled by one of the Restatement Second's specific
importance with respect to the particular issue.
component is a number of sections focused on specific claims and narrow rules. Other state courts have not been consistent in their
Section 6 sets forth the choice-of-law principles:
issues. [Section 146.] For most choice-of-law questions, more terminology about what approach they are following, and others
(1) A court, subject to constitutional restrictions, will follow a
than one section will apply. have retained primary emphasis on the place of the wrong in tort
statutory directive of its own state on choice of law.
cases, even while abandoning the lex loci delicti for the Restatement
(2) When there is no such directive, the factors relevant to the
Id. at 519-520. Second․
choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum, The approach of the Restatement (Second) has been praised by Id. at 823, quoting Kay, Theory Into Practice:  Choice of Law in the
(c) the relevant policies of other interested states and the relative some courts and commentators for its flexibility and its reflection of Courts, 34 Mercer L.Rev. 521, 561-562 (1983). A review of cases
interests of those states in the determination of the particular issue, more “modern” thinking on choice of law. Hataway v. McKinley, shows that while the rule of lex loci delicti of the original
(d) the protection of justified expectations, supra at 57, citing Gregory E. Smith, Choice of Law in the United Restatement is attacked because of its seeming rigidity and its
(e) the basic policies underlying the particular field of law, States, 31 Hastings L.J. 1041, 1046 (1987). But it has its share of insistence on the application of a few specific rules, the approach of
(f) certainty, predictability and uniformity of result, and critics in the courts and in the commentary of scholars. the Restatement (Second) fails to provide enough guidance to the
(g) ease in the determination and application of the law to be courts to produce even a semblance of uniformity among the states
applied. following its method. Id.
 3

The methodology is not only complex, but it provides no underlying The rule of lex loci delicti remains the law of Georgia, and the At the time of the accident, Melton had been employed by Perdue for
principle other than applying the law of the state that has the “most judgment of the Court of Appeals is affirmed.11 approximately 14 years as a commercial motor vehicle (CMV) driver
significant relationship” to the issue․ As a result, it has become Judgment affirmed. and had made deliveries to Perdue's poultry farms in Illinois at least
difficult to predict what a court will do when faced with choice of law once or twice a week for each of the past 14 years. Both individuals
issues, and each case seems to demand an ad hoc determination. MELTON v. STEPHENS were making roundtrips that originated in Indiana and which were
For attorneys, this lack of predictability may discourage settlement; James K. MELTON, Perdue Foods, LLC f/k/a Perdue Farms designed to return them to their respective places of employment
 it certainly inhibits an accurate case valuation. For judges, choice of Incorporated and FPP Business Services, Inc. f/k/a Perdue Business when their vehicles collided in Illinois. Although Melton made regular
law issues take an inordinate amount of time and require a fairly Services, Inc., Appellants-Defendants, v. Chad STEPHENS, Guardian of deliveries from Perdue's feed mill in Washington, Indiana to its
complex analysis. the Person and Estate of Stacy S. Stephens and Chad Stephens, operations in Illinois, this was the first time Stacy had travelled to
Appellees-Plaintiffs. James K. Melton, Perdue Foods, LLC f/k/a Perdue Bridgeport, Illinois at the direction of her employer to transport an
Shirley A. Wiegand, Fifty Conflict of Laws “Restatements”:  Merging Farms Incorporated and FPP Business Services, Inc. f/k/a Perdue Illinois patient to an appointment in Indiana.
Judicial Discretion and Legislative Endorsement, 65 La. L.Rev. 1, 4 Business Services, Inc., Third Party Plaintiffs, v. Knox County EMS, Inc.,
(2004). Third Party Defendant. Melton, in a semi tractor-trailer, travelled west on U.S. 50, which has
Court of Appeals of Indiana. a posted speed limit of 50 mph, at a speed of 58 mph. He was behind
July 22, 2014. the 2006 Ford Fusion, driven by Stacy, when Stacy began to slow the
The inescapable conclusion is that the approach of the Restatement
(Second) of Conflict of Laws is not superior to the traditional rule of OPINION car several hundred feet from the intersection in anticipation of
lex loci delicti currently used in Georgia. Nor have the other major RILEY, Judge. making her turn. She had nearly completed her left turn onto County
approaches mentioned earlier proven to be a panacea for the Road 900 East when Melton collided into her vehicle. Melton
STATEMENT OF THE CASE contends that he was attempting to pass Stacy at the time of impact
resolution of conflict of laws issues.7 In fact, the array of “modern” Appellants-Defendants, James K. Melton (Melton), Perdue Foods, LLC
conflict approaches and their seemingly unending variations have and claims that Stacy failed to signal her turn as she approached the
f/k/a/ Perdue Farms Incorporated (Perdue), and FPP Business intersection. He was issued a citation for passing within 100 feet of an
been described as creating “a veritable playpen for judicial Services, Inc. f/k/a/ Perdue Business Services, Inc. (FPP Business)
policymakers.” 8 Shirley A. Wiegand, Fifty Conflict of Laws intersection, which was adjudicated in the Lawrence Circuit Court,
(collectively, Appellants), appeal the trial court's findings of fact and Lawrence County, Illinois.
“Restatements”:  Merging Judicial Discretion and Legislative conclusions thereon determining that the substantive laws of the
Endorsement, 65 La. L.Rev. 1, 4 (2004). This Court declines to State of Illinois apply to a motor vehicle collision which occurred in the
engage in such a policymaking exercise.9 State of Illinois between residents of the State of Indiana.1 We affirm. On June 9, 2011, the Stephens filed a Complaint against Melton and
Perdue, alleging negligence by Melton in the operation of the tractor-
ISSUE trailer. Specifically, they contend that:
Utilizing a rule in the area of conflict of laws can serve the ends of
Appellants raise one issue on interlocutory appeal, which we restate
justice because it furnishes the judicial machinery by which like
as: Whether the trial court properly held that Illinois substantive law
situations are adjudged equally. First Nat. Bank in Fort Collins v. a) [Melton] drove his vehicle to the left side of the center of the
is applicable to a collision which occurred in Illinois between two
Rostek, supra at 319, citing Reese, Choice of Law:  Rules or Approach, roadway in an attempt to overtake and pass the vehicle being
Indiana residents after considering the choice of law factors
57 Cornell L.Rev. 315 (1972). Such a rule of law can fulfill an operated by [Stacy] when approaching within 100 feet of and while
delineated in Hubbard Manufacturing Co., Inc. v. Greeson, 515 N.E.2d
essential function of concrete justice. Id. at 319. This Court will traversing the intersection of U.S. 50 and County Road 900 East in
1071 (Ind.1987).
retain its long-held conflict of laws rule not out of blind adherence the County of Lawrence, State of Illinois in direct violation of 625 ILCS
but rather, out of the candid recognition that the subsequently- FACTS AND PROCEDURAL HISTORY 5/11-706;b) [Melton] drove his vehicle to the left of center of the
developed theories have significant problems. The relative The underlying lawsuit arose out of a motor vehicle collision between roadway while attempting to overtake and pass the vehicle being
certainty, predictability, and ease of the application of lex loci delicti, Appellees-Plaintiffs, Stacy S. Stephens (Stacy) and Chad Stephens driven by [Stacy] and in doing so interfered with the safe operation
even though sometimes leading to results which may appear (Chad) (collectively, Stephens)2 and Melton at the intersection of U.S.
harsh,10 are preferable to the inconsistency and capriciousness that of the vehicle being operated by [Stacy] in direct violation of 625 ILCS
50 and County Road 900 East in Lawrence County, Illinois. Stacy, a
the replacement choice-of-law approaches have wrought. Paul v. 5/11-705;c) [Melton] failed to reduce the speed of his vehicle so as
resident of the State of Indiana, was within the course and scope of
National Life, supra at 555;  First Nat'l Bank v. Rostek, supra. As the her employment with Knox County EMS of Vincennes, Indiana, and to avoid colliding with the vehicle being driven by [Stacy] in direct
Court of Appeals of New York aptly noted, “we should not depart Melton, also a resident of the State of Indiana, was within the course violation of 625 ILCS 5/11-601;d) [Melton] drove his vehicle at a
from sound precedent simply for the sake of change or merely and scope of his employment with Perdue. Perdue, a Maryland speed which was in excess of that which was reasonable and prudent
because other courts have arrived at a result different from that corporation and registered to do business in Illinois, is a wholly owned under the conditions in direct violation of 625 ILCS 5/11-601;e)
which we have espoused.” Endresz v. Friedberg, 24 N.Y.2d 478, 301 subsidiary of FPP Business. [Melton] negligently failed to keep his vehicle under control at all
N.Y.S.2d 65, 248 N.E.2d 901, 906 (1969). times;f) [Melton] negligently failed to keep a reasonable lookout for
the vehicle being operated by [Stacy].
 4

(Appellant's App. p. 45). In addition, the Stephens claimed that, as a which encouraged the employees of [Perdue] who operated e) [Perdue] allowed [Melton] to operate a commercial motor vehicle
result of Melton's negligence, Chad suffered a loss of consortium. commercial motor vehicles to drive at a speed that was in excess of when he was not medically qualified to do so in contravention of 49
that which was reasonable and prudent under the conditions. CFR § 392.3;f) [Perdue] failed to develop or implement policies,
On February 23, 2012, the Stephens filed an Amended Complaint, programs or procedures to identify, test and remove from service
reasserting the negligence claims and adding a new claim against (Appellant's App. p. 107). As with the previous Complaints, Chad also those commercial motor vehicle drivers with signs, traits and
Perdue, which specified: added a loss of consortium claim against FPP Business. symptoms of obstructive sleep apnea, including [Melton];g) [Perdue]
failed to train its commercial motor vehicle drivers, including
a) [Perdue] negligently failed to train [Melton] in the proper use and On March 27, 2013, the trial court conducted a hearing on Appellants' [Melton] concerning the hazards of operating a commercial motor
operation of a commercial motor vehicle;b) [Perdue] negligently motion to determine applicable law. Thereafter, on June 4, 2013, the vehicle with untreated sleep apnea;h) [Perdue] failed to train the
failed to supervise [Melton] while operating the commercial motor trial court issued its findings of fact and conclusions thereon, holding medical examiners who performed fitness examinations for its
vehicle they provided to him;c) [Perdue] promulgated policies which that the substantive law of Illinois is applicable to the facts at hand. commercial motor vehicle drivers of the signs, traits and symptoms
encouraged its employees who operated motor vehicles to exceed Two days later, on June 6, 2013, the Stephens filed a Third Amended of obstructive sleep apnea. (Appellant's App. pp. 271-72).
the posted speed limit;d) [Perdue] promulgated policies which Complaint. Besides reiterating the allegations included in the
encouraged its employees who operated commercial motor vehicles previous Complaints, the Stephens added a claim for punitive In their Answer to the Third Amended Complaint, Appellants denied
to drive at a speed that was in excess of that which was reasonable damages against Appellants. With respect to Melton, the Stephens any negligence in training, supervision, and screening Melton for
and prudent under the conditions. asserted: obstructive sleep apnea. Additionally, they also alleged that Stacy
should be allocated fault for certain violations of the Illinois Vehicle
2. That [Melton] knew that he had obstructive sleep apnea from May Code-Rules of the Road.
(Appellant's App. pp. 53-54). In addition, Chad also asserted a loss of
22, 2009 through the time of the motor vehicle collision[.];3. That at
consortium claim against Perdue.
the time of the collision [] [Melton], wantonly, maliciously,
In light of this Third Amended Complaint, the Appellants filed a
oppressively, or willfully operated a commercial motor vehicle while renewed motion to determine applicable law on June 28, 2013. The
On July 20, 2012, Appellants filed their motion to determine applicable
his ability to do so was impaired as a result of untreated severe following month, on July 19, 2013, the trial court denied Appellants'
law, requesting the trial court to apply Indiana's substantive law to the
obstructive sleep apnea.4. That at the time of the collision, [] renewed motion, incorporating into its Order the trial court's prior
instant cause, in adherence to our supreme court's decision
[Melton], operated a commercial motor vehicle while his ability to do June 4, 2013 findings of fact and conclusion thereon and holding the
in Hubbard Manufacturing Co., Inc. v. Greeson, 515 N.E.2d
1071 (Ind.1987). On August 2, 2012, the Stephens responded to the was impaired as a result of untreated severe obstructive sleep apnea Illinois' substantive law applicable to the facts before the court. At the
motion. in reckless disregard or indifference to the health and safety of same time, the trial court certified its Order for interlocutory appeal,
others, including [] [Stacy].5. That at all times herein and in the which this court subsequently accepted on September 27, 2013.
Additional facts will provided as necessary.
On August 27, 2012, the Stephens filed a Second Amended Complaint, months and years leading up to the date of the collision [] [Melton]
amending their contentions against Melton and Perdue, and adding engaged in conduct that constituted intentional, willful or wanton DISCUSSION AND DECISION
new, direct claims against FPP Business. With respect to Melton and deceit in order to obtain or maintain his status with a commercial This interlocutory appeal is limited to the parties' dispute concerning
Perdue, the Stephens added that "[Melton] drove a commercial motor driver's license and employment with [Perdue] by providing the the substantive law applicable to the instant case. Although relying on
vehicle in violation § 391.41(a)(l)(I) of the Federal Motor Carrier Safety medical examiners who performed his fitness determination the same set of cases — Hubbard and Simon v. U.S., 805 N.E.2d
Regulation when he was not properly medically certified as physically examinations false, incomplete, or inaccurate information 798 (Ind.2004) — both parties reach a different result in applying
qualified to do so." (Appellant's App. p. 102). The Stephens' new concerning his health history or failed to provide them pertinent Indiana's choice of law rules. Based on these principles, Appellants
negligence claim against FPP Business rests upon the specific information concerning his health history.6. That the conduct of argue for the application of Indiana substantive law, while the trial
contentions that: [Melton] [] constituted wanton, malicious, oppressive, or willful court concluded, and the Stephens agree, that Illinois substantive law
governs the cause.
misconduct or constituted a reckless disregard or indifference to the
a) [FPP Business] negligently failed to train [Melton] in the proper health and safety of others, including [Stacy].7. That the conduct of I. Standard of Review
use and operation of a commercial motor vehicle;b) [FPP Business] [Melton] constitutes such conduct for which punitive damages Indiana Trial Rule 52(A) provides that "[o]n appeal of claims tried by
negligently failed to supervise [Melton] while operating the should be assessed and awarded at the time of the trial of this cause the court without a jury ... the court on appeal shall not set aside the
commercial motor vehicle provided to him by [Perdue];c) [FPP by the trier of fact. findings or judgment unless clearly erroneous[.]" The court engages in
Business] promulgated policies which encouraged the employees of a two-tiered standard of review when applying this standard. Burk v.
[Perdue] to operate commercial motor vehicles at a speed in excess Heritage Food Serv. Equip., Inc., 737 N.E.2d 803, 811
(Appellant's App. pp. 269-70). A similar claim against Perdue and FPP (Ind.Ct.App.2000). First, we consider whether the evidence supports
of the posted speed limit;d) [FPP Business] promulgated policies Business is based on the particular assertions that: the findings, construing these findings liberally in support of the
 5

judgment. Id. Findings are clearly erroneous only when a review of the exclusive list nor are they necessarily relevant in every case. All Melton emphasizes his untreated sleep apnea, while the claim against
record leaves us firmly convinced that a mistake has been contacts should be evaluated according to their relative importance Perdue and FPP Business "wholly" relates to the failure to provide
made. Id. Next, we determine whether the findings support the to the particular issues being litigated." Id. This litigation ought to training and supervision to Melton and promulgation of appropriate
judgment. Id. A judgment is clearly erroneous when the findings of focus on the essential elements of the whole cause of action, rather policies — conduct which occurred entirely in Indiana. (Appellants'
fact and conclusions thereon do not support it. Id. However, here, the than on the issues one party or the other forecasts will be the most Reply Br. p. 5) (See also Appellants' Br. pp. 17-18).
trial court did not conduct an evidentiary hearing on Appellants' hotly contested given the anticipated proofs. Id.
renewed Motion to Determine Applicable Law. Therefore, to the It is a "rare case" where the place of the tort is
extent the trial court's factual findings are based on a paper record, Because both parties agree — and we concur — that the distinction insignificant. Simon, 805 N.E.2d at 806. In fact, Simon appears to
this court conducts its own de novo review of the record. Equicor Dev., between Indiana's and Illinois' substantive law are important enough suggest that most cases involving an automobile accident will be
Inc. v. Westfield-Washington Twp. Plan Comm'n, 758 N.E.2d 34, 37 to affect the outcome of the litigation, we will next turn to the lex loci governed by the laws of the state where the accident occurred. See
(Ind.2001). delicti step of the Hubbard inquiry. id. ("[U]nlike in cases involving an automobile accident, the laws of the
II. Indiana's Choice of Law3 state where the crash occurred did not govern the conduct of the
A. Lex Loci Delicti
Rules about the choice of law are among the few fields still dominated parties at the time of the accident.") (emphasis added).
Under this presumption, the court applies the substantive laws of the
by judge-made doctrine and choosing the applicable substantive law state where the last event necessary to make an actor liable for the
for a given case is a decision made by the courts of the state in which alleged wrong takes place. Shaw v. LDC Enterprises, 863 N.E.2d 424, To determine whether this is one of those "rare case[s]," this court
the lawsuit is pending. In 1987, our supreme court issued Hubbard, its 431 (Ind.Ct.App.2007), trans. granted (July 19, 2007), order vacated should define "the gravamen" of the Stephens' complaint. See Judge
seminal case on Indiana's choice of law jurisprudence. Since and trans. denied (Sept. 18, 2007). "[W]here the issue is the choice v. Pilot Oil Corp., 17 F.Supp.2d 832, 834 (N.D.Ind.1998). Focusing on
then, Hubbard and its progeny have dominated this state's choice of between the law of the place where an allegedly wrongful act or the Stephens' Amended Complaints, we note that all the allegations
law landscape. omission took place and the law of the place where physical injury was stem from Melton's perceived negligence in operating his vehicle, be
inflicted, the general rule is that the `place of the tort' is the place it negligently ignoring the rules of the road or negligently driving with
In Hubbard, our supreme court advocated a multiple step inquiry to where the injury or death was inflicted and not the place where the knowledge of his severe sleep apnea. Through the doctrine
determine Indiana's choice of law framework in tort cases. As a allegedly wrongful act or omission took place." Id. (citing E.H. of respondeat superior as well as through the independent negligence
preliminary premise, the trial court must determine whether the Schopler, Annotation, What is the Place of Tort Causing Personal Injury claims of failure of supervision and training, the Stephens attempt to
differences between the laws of the states are "important enough to or Resultant Damage or Death, for Purpose of Principle of Conflict Laws also hold Perdue and FPP Business responsible for Stacy's injuries.
affect the outcome of the litigation." Hubbard, 515 N.E.2d at 1073. If that Law of Place of Tort Governs, 77 A.L.R.2d 1266, 1273 (1961)). Accordingly, without Melton's alleged negligence in operating his
such a conflict exists, the presumption arises that the traditional lex vehicle, there would be no need for this lawsuit.
loci delicti rule — the place of the wrong — will apply. Id. Under this Although Appellants contest the place where the allegedly wrongful
initial step, the trial court applies the substantive law of "the state act took place, they do not dispute that Stacy's injury occurred in Moreover, even though at first glance, the claims of negligent
where the last event necessary to make an actor liable for the alleged Illinois. As such, the lex loci delicti is established in Illinois' substantive supervision and training lodged at Perdue and FPP Business do not
wrong takes place." Id. law. find a contact point in Illinois substantive law, we hasten to clarify that
these allegations are also embedded in Illinois' Rules of the Road.
In a large number of cases, the place of the tort will be significant and Specifically, 625 ILCS § 5/18b-105 incorporates certain parts of Title
the place with the most contacts. Id. In those cases, the traditional B. Significance of Illinois' Substantive Law 49 of the Code of Federal Regulations, such as the prohibition that a
rule serves well. However, this presumption is not Contending that the presumption of the lex loci delicti is overcome in driver with a respiratory dysfunction is not medically certifiable to
conclusive. Id. When the place of the tort is an insignificant contact, favor of Indiana's substantive law, Appellants assert that "[b]ecause drive a CMV; and the prohibition that Perdue/FPP Business can
then the trial court should be allowed to evaluate other factors. Id. In the gravamen of the Stephens' claim [] is wholly centered on conduct require Melton to operate a CMV while his alertness is likely to be
these instances, where the place of the tort bears little connection to which predates the [c]rash and occurred in Indiana, the place of the impaired. Although we agree with Appellants that Perdue and FPP
the legal action, our supreme court allows the consideration of factors tort, Illinois, bears little connection to this action[.]" (Appellants' Reply Business's failure in supervision and training occurred in Indiana and
that may be more relevant, such as: 1) the place where the conduct Br. p. 6). Appellants contend that the Stephens mischaracterize their Maryland, this conduct only became legally negligent as a result of
causing the injury occurred; 2) the residence or place of business of action as a routine vehicle accident where liability will be grounded Melton's accident in Illinois.
the parties; and 3) the place where the relationship is centered. Id. at upon violations of the Illinois rules of the road. Instead, Appellants
1073-74. assert, the core of the Stephens' claim is "focused upon [Melton's] In addition to emphasizing the location of the tort, the Stephens also
operation of his tractor-trailer when he allegedly knew, or reasonably point to Appellants' claims for contribution against the State of Illinois
should have known, he suffered from untreated obstructive sleep based on the Illinois Joint Tortfeasor Contribution Act pending in the
In Simon v. U.S., 805 N.E.2d 798, 805 (Ind.2004), the court clarified the
apnea." (Appellants' Reply Br. p. 5). Clarifying their position, Illinois Court of Claims, alleging Illinois' alleged failure to meet
additional contacts which may be considered when the location of the
Appellants maintain that the center of the Stephens' suit against applicable highway engineering standards set forth by the Illinois
tort is deemed insignificant, noting that "[t]hese factors are not an
 6

Department of Transportation; Melton's citation issued by the Illinois necessarily relevant in every case." Simon, 805 N.E.2d at 805. All that standard rather than the law of the parties' residence. In fact,
State Police for passing within 100 feet of an intersection; and Stacy's contacts "should be evaluated according to their relative importance this preference of the conduct-regulating law of the conduct state is
pending claim for Illinois' Workers' Compensation benefits for injuries to the particular issues being litigated." Id. virtually absolute, winning out even over the law of other interested
as separate contact points to increase the significance of the lex loci states. Courts as a practical matter recognize a conduct-regulating
delicti. Mindful of Simon's directive to include the "essential elements Maintaining that the collision only took place in Illinois by accident, exception to the normal interest-based choice-of-law methods....
of the whole cause of action," we must reject the Workers' Appellants content that the real connection lies in Indiana. They This is also true in Indiana.
Compensation Claim as it fails to relate to the gravamen of the especially refer to the second contact point — domicile — to bolster
Stephens' action. See Simon, 805 N.E.2d at 806; Hubbard, 515 N.E.2d their claim: both Melton and Stacy are Indiana residents and were
at 1074 (concluding that Illinois bore little connection because it being Simon, 805 N.E.2d at 807 n. 12. See also Judge v. Pilot Oil Corp., 17
employed by Indiana-based corporations at the time of the accident.
the site of the coroner's inquest and source of worker's compensation F.Supp.2d 832, 836 (N.D.Ind.1998) ("Each state has an interest in
Focusing on the negligent acts of supervision, Appellants argue that
benefits did not "relate[] to the wrongful death action"). having its policies applied to its residents and to conduct that occurs
"[a]lthough the effect of those allegedly negligent acts may have been
within its borders.").
felt in Illinois, the conduct which is of the greatest significance to the
Because the drivers' conduct in operating their motor vehicles prior to Stephens' claims (i.e., that Melton operated his tractor-trailer when
the collision will be the focus of attention to determine liability, and he knew, or reasonably should have known, that he suffered from Accordingly, the trial court correctly determined that in the case at
that conduct was governed by the rules of the road of the state in untreated obstructive sleep apnea and that Perdue and/or FPP bar, the place of the tort has extensive connection with the legal
which the accident occurred, we conclude that the presumption of [Business] failed to provide Melton with training on the dangers of action, and thus, the doctrine of lex loci delicti retains its vitality. We
the lex loci delicti remains significant and is not overcome. See also driving a[CMV] with untreated sleep apnea) is rooted in Indiana." hold that the trial court correctly applied the Hubbard test and
Tompkins v. Isbell, 543 N.E.2d 680, 682 (Ind.Ct.App.1989) ("[T]he (Appellants' Reply Br. p. 10). Thus, Appellants assert that concluded that Illinois substantive law governs the action.
place of the tort in a case arising out of a motor vehicle accident has the Hubbard factors favor Indiana because "the relationship between CONCLUSION
extensive connection with the legal action."). Moreover, recognizing the two drivers and their employers, which took them on routes just Based on the foregoing, we conclude that the trial court properly held
that the issues presented by Stephens are substantial and not merely over the Indiana border, are centered in Indiana." (Appellants' Br. p. that Illinois substantive law is applicable to a collision which occurred
remedial or procedural, the conduct must be necessarily governed by 19). in Illinois between two Indiana residents.
Illinois' Rules of the Road as "people do not take the laws of their home Affirmed. NAJAM, J. and ROBB, J. concur.
state with them when they travel but are subject to the laws of the Although we agree that the residence element of the Hubbard test G.R. No. 122191 October 8, 1998
state in which they act." Simon, 805 N.E.2d at 806. Based on the favors Indiana, as both Melton and Stacy are Indiana residents, SAUDI ARABIAN AIRLINES
circumstances before us, we conclude that the place of the tort is working for Indiana-based companies, neither of the other two vs. COURT OF APPEALS
significant to the action. elements support the application of Indiana substantive law to this Recycle from Chapter I – Steps in determining applicable law)
cause. Despite Appellants' arguments to center the relationship in First National Bank in Fort Collins v. Rostek
However, even if we were to concur with Appellants' arguments and Indiana, the `relationship' between the two actors in the collision only 514 P.2d 314 (1973)
conclude that the presumption of the lex loci delicti is overcome, our came into existence through the accident in Illinois. There is no FIRST NATIONAL BANK IN FORT COLLINS, as guardian of Mickey Allen
analysis of Hubbard's additional factors would reach the same result. evidence, and the parties cannot point us to any, that their paths Hornbacher, et al., Petitioner, v. Shirley L. ROSTEK, Administratrix of
crossed anywhere else but in Illinois. the Estate of John E. Rostek, Respondent.
No. C-317.
B. Second Hubbard Step: Relative Importance of Supreme Court of Colorado, En Banc.
Furthermore, unlike Appellants, we deem the place of the conduct
Additional Contacts causing injury to be centered in Illinois. We have defined the September 24, 1973.
gravamen of the Stephens' Complaint to be Melton's negligent *315 The Law Offices of Daniel S. Hoffman; by Gene M. Hoffman, of
Even if we deemed the State of Illinois, as place of the tort, to be an operation of his vehicle. Therefore, this conduct is necessarily counsel, Denver, for petititoner.
insignificant contact — which we do not — an analysis of the governed by the law of the state in which he negligently Hill & Hill, Fort Collins, Blunk, Johnson & Allspach, Denver, for
additional Hubbard factors would yield a similar outcome. acted, i.e., Illinois. Even though the Stephens asserted negligent respondent.
training and supervision against Perdue and FPP Business through the PRINGLE, Chief Justice.
doctrine of respondeat superior, this negligence only became
Where the place of the tort bears little connection to the legal action,
actionable when the injury occurred at the time of the collision. As our This case arises out of events surrounding a tragic airplane accident
our supreme court allows the consideration of other factors that may
supreme court noted in Simon, which took the lives of Carol Hardin Rostek and her husband, John E.
be more relevant, such as: 1) the place where the conduct causing the
injury occurred; 2) the residence or place of business of the parties; Rostek. The First National Bank in Fort Collins, plaintiff below
and 3) the place where the relationship is centered. Hubbard, 515 [i]f the state of conduct has a law regulating how the tortfeasor or (petitioner herein), is the guardian of the natural children of Carol
N.E.2d at 1073-74. "These factors are not an exclusive list nor are they victim is supposed to act in the particular situation, courts will apply
 7

Hardin Rostek. The respondent is the administratrix of the estate of The petitioner then petitioned this court, pursuant to C.A.R. 50, for a therefore, that stare decisis does not compel this court to apply the
John E. Rostek. writ of certiorari to review the summary judgment of the trial court. rule of lex loci delicti without regard to the facts and circumstances
We granted certiorari for the sole purpose of determining if in the particular case. Instead, this court must decide, as a matter of
Pursuant to 1967 Perm.Supp., C.R.S. 1963, 41-1-3, petitioner filed a Colorado courts are compelled to apply the doctrine of lex loci delicti first impression, whether the broad rule of lex loci delicti should be
wrongful death action in Colorado district court alleging that (the law of the place of the wrong), under the facts and adopted and applied to this case, or whether a more flexible choice
negligent operation of the aircraft on the part of John E. Rostek circumstances of this case. of law rule should control.
caused the accident and the ensuing death of his guest-passenger, I. II.
Carol Hardin Rostek. A brief review of Colorado case law convinces us that the issue When the doctrine of lex loci delicti was first established in the mid-
presented in this case has in reality never been previously decided by nineteenth century, conditions were such that people only
this court, and that the doctrine of lex loci delicti appears in Colorado occasionally crossed state boundaries. Under those circumstances,
The respondent filed a motion for summary judgment alleging the
law more by default than by design. there was legitimacy in a rule which presumed that persons changing
rights of the parties are governed by the South Dakota Aircraft Guest
jurisdictions would be aware of the different duties and obligations
Statute, S.D.C.L.1967, 50-13-15. This South Dakota statute requires
*316 In both Atchison T. & S.F.R. Co. v. Betts, 10 Colo. 431, 15 P. 821 they were incurring when they made the interstate journey. Further,
proof by the guest-passenger of willful or wanton misconduct on the
(New Mexico law applied where a suit was brought for the killing of even if persons making these occasional journeys into neighboring
part of an operator of an aircraft.
plaintiff's mule by defendant railroad in New Mexico) and Denver & states were not actually aware of the changing duties and
R.G.R. Co. v. Warring, 37 Colo. 122, 86 P. 305 (New Mexico law responsibilities, enforcing the laws of the jurisdiction in which they
For purposes of the summary judgment motion the parties were wronged was justified because of the "vested rights" doctrine
applied to determine if legal action by a personal representative of
stipulated that at most the petitioner's evidence would show simple that was prevalent and widely accepted at that time. See Page,
deceased was proper when accident occurred in New Mexico), the
negligence on the part of John Rostek. The parties also stipulated Conflict of Law Problems in Automobile Accidents, 1943 Wis.L.Rev.
question of whether any rule other than lex loci delicti should be
that John and Carol Rostek were both citizens and residents of the *317 145, 150. Thus, the rule of lex loci delicti was originally viewed
applied was never raised. In both cases the court applied the law of
state of Colorado, and that Carol Rostek's natural children, who are as a practical formula by which individuals could govern their actions
the place of the wrong without recognition of the choice of law issue
her sole heirs at law, resided with her in Colorado. With respect to in accordance with prevailing attitudes and customs, providing both
and without a discussion of any choice of law doctrine. This is, of
the events in question, the stipulation stated: uniformity of application and predictability of results.
course, typical of cases from all jurisdictions in the days when A. T. &
S. F. and D. & R. G. R. were decided. Lex loci delicti was accepted
"That on or about December 29, 1969, John E. Rostek, deceased, doctrine then and none challenged it or gave any thought to its However, with the industrial revolution and the passage of time, the
accompanied by his wife, Carol Hardin Rostek, deceased, took off justification or its fairness. interstate mobility of the citizenry increased in speed and availability
from Colorado enroute to Iowa and Vermillion, South Dakota. That to such an extent that persons no longer regarded an interstate
the Rosteks intended to remain in Vermillion, South Dakota, The only Colorado case which expressly mentions the doctrine of lex journey as a rare occurrence entailing a significant change of
overnight, but after ascertaining that a board of directors meeting loci delicti is Pando v. Jasper, 133 Colo. 321, 295 P.2d 229, cited by surroundings. As these attitudes and conditions changed, it became
could not be held that evening decided to return to Fort Collins the the trial court in the instant case to support its summary judgment. clear that the mechanical application of lex loci delicti to every
same night. "That the Rosteks took off in their twin engine plane that In Pando an accident had occurred in Kansas and the suit was multistate tort controversy often yielded harsh, unjust results,
evening from Harold Davidson Airport, Vermillion, South Dakota. brought in Colorado. In the process of addressing the issue of unrelated to the contemporary interests of the states involved or the
That two days later, the plane was found approximately 500 feet whether the Kansas guest statute had to be proven like other facts at realistic expectations of the parties.
from the end of the runway." trial, the court assumed that the claim was governed generally by
Kansas law under the doctrine of lex loci delicti. This reference to lex To avoid the growing number of undesirable results which strict
loci delicti is unquestionably dicta, and the court reached this adherence to lex loci delicti produced, courts devised various
The trial court granted the respondent's motion for summary
conclusion without citing any previous Colorado cases as precedent. methods of characterizing the issues in the controversy to allow
judgment and held:
Further, in Pando, as in previous cases where the court applied the them to deviate from the application of lex loci delicti without
". . . The parties have agreed that if the trial court is to adopt the law
law of the place of the wrong, no issue was raised concerning the offending stare decisis. By labeling a matter as "procedural" rather
of the place of the wrong, lex loci, the case must be dismissed. If the applicability or scope of the doctrine of lex loci delicti or any other than "substantive," or "contractual" rather than "tortious," courts
Court is to adopt the law in which the trial is held, lex fori, the choice of law rule. were able to apply law other than the law of the place of the wrong.
motion must be denied. "The law in Colorado is that the claim is See, e.g., Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d
governed by lex loci delicti, rather than lex fori. Pando v. Jasper [133 133, 172 N.E.2d 526; Grant v. McAuliffe, 41 Cal. 2d 859, 264 P.2d
Thus, this court in effect has not previously been confronted with the
Colo. 321], 295 P.2d 229 and Bannowsky v. Krauser, [D.C.], 294 F. issue of the propriety and the justice of the doctrine of lex loci 944. In the process the courts were, in effect, making a choice of law
Supp. 1204." delicti, nor has this court previously held that such a broad rule decision without exposing the real choice influencing factors for
unfailingly applies in all multistate controversies.[1] We conclude, objective classification and criticism. This constant search for a result
which would comport with reason and justice made it evident by the
 8

mid-twentieth century that the doctrine of lex loci delicti no longer Thus, quite naturally, these approaches have exhibited a certain lack to formulate a specific rule governing the application of guest
provided the high degree of predictability and uniformity which were of both predictability of result and uniformity of application. This statutes in multistate tort controversies. This rule generally
considered its primary virtues. situation cannot be completely disregarded. While we recognize that embodies the rational underpinnings of the newer approaches to
a rational and equitable approach to choice of law is desirable, we choice of law problems, emphasizing the expectations of the parties
The questionable viability of the lex loci delicti rule in today's society now harmonize that approach with the genius of the common law and the interests of the different jurisdictions involved. We are
has been recognized by courts and commentators alike. In the last which always sought to provide to its consumers some degree of persuaded that it is just and equitable and ought to be accepted in
ten years, while several states have retained adherence to the broad predictability and consistency in application. As we have said, Colorado with respect to the first two sections thereof and we now
lex loci delicti rule,[2] a greater number of jurisdictions have accidents occurring in states not the domicile of all of the parties are do so. As stated by the New York court, those sections provide:
abandoned or rejected lex loci delicti in favor of a more flexible and commonplace in today's society. The law should not deal with them
rational choice of law approach in multistate tort cases.[3] The as if they were rare and exotic hypotheticals, to be solved by "1. When the guest-passenger and the host-driver are domiciled in
majority of those cases rejecting the lex loci delicti rule have *318 exercises in intellectual gamesmanship. The events in this case, and the same state, and the [vehicle] is there registered, the law of that
involved the application of host-guest statutes or the question of their probable reoccurrence, are real world concerns, and the law in
state should control and determine the standard of care which the
interspousal liability for injuries received in automobile or airplane this area should provide a concrete and viable system for the equal
host owes to his guest. "2. When the driver's conduct occurred in the
accidents. Additionally, the overwhelming majority of commentators application of just *319 laws. See Rosenberg in Comments on Reich
state of his domicile and that state does not cast him in liability for
are opposed to the mechanical application of the place of wrong v. Purcell, 15 U.C.L.A., L.Rev. 551, 641, 644-45 (1968).
that conduct, he should not be held liable by reason of the fact that
rule,[4] largely for the reasons previously discussed.
liability would be imposed upon him under the tort law of the state
Because of the lack of consistency and predictability exhibited by
of the victim's domicile. Conversely, when the guest was injured in
The rationale of the cases rejecting lex loci delicti, the views of various proposed choice of law "approaches," the principal question
in choice of law today is whether or not to adopt rational choice of the state of his own domicile and its law permits recovery, the driver
eminent authorities in the field of tort law, and our own observations
law "rules," or to deal with each case as it comes to us on an ad hoc who has come into that state should notin the absence of special
and experience convince us a more flexible and rational approach
basis. Rules are employed in most areas of the law because they circumstancesbe permitted to interpose the law of his state as a
than lex loci delicti affords is necessary. We fully appreciate the
arguments made by the defendant that lex loci delicti retains some provide the benefits of certainty and predictability. To some extent defense." IV.
predictability of result and ease of application by courts. Yet, the the existence of a rule in any area of the law serves the ends of
facts in the case at bar classically demonstrate the injustice and justice since it furnishes the juridical machinery by which like We must now apply the aforementioned choice of law rule to
irrationality of the automatic application of the lex loci delicti rule. situations are equally adjudged. See Reese, Choice of Law: Rules or determine if the South Dakota guest statute should be applied to the
Both Carol and John Rostek were citizens of Colorado. The airplane in Approach, 57 Cornell L.Rev. 315 (1972). In short, rules are one of the case at bar. Both the guest-passenger and the host-pilot were
question was registered in Colorado and was returning to Colorado laws' attributes, and fulfill an essential function of concrete justice. domiciled and residing in Colorado, and the airplane was registered
when the accident occurred. The lawsuit was brought in a Colorado in Colorado. Thus, the facts in this case are governed by the first
forum with a Colorado resident as defendant. It becomes evident, Thus, in order to provide some predictability of result and uniformity statement of the rule. Under this statement, the rights and liabilities
therefore, that South Dakota's only interest in this controversy is the of application, this court turns to the adoption of some rules dealing of the parties are governed by the law of the place of domicile which
fortuitous occurrence of the accident within its borders. Thus the with choice of law. In so doing, we begin with the particular issue in this case is Colorado. Accordingly, South Dakota law, including its
trial court's decision to apply South Dakota law to this case can be presented in this case, namely, the application of a guest statute to a Airplane Guest Statute, is not the appropriate law to apply under this
affirmed only if we are to adhere to a mechanical and unfailing host-guest controversy. We consider this issue a narrow one, new rule.
application of the place of wrong rule, regardless of the interests of occurring with enough frequency and repetitiveness to enable us to
the states involved or the expectations of the parties. This we refuse extract specific guidelines that will satisfactorily regulate this issue. *320 We recognize that this case is a comparatively easy one and in
to do. See Reese, Choice of Law: Rules or Approach, supra, p. 325. cases like it the result will hereafter be reasonably easy for lawyers
III. and judges to reach. Admittedly, there will be harder cases, more
Although most courts and commentators are united in their Our search for a workable choice of law rule in the guest-host area difficult to decide even under the narrow host-guest rule. However,
opposition to the use of the general lex loci delicti rule, there is leads to the majority opinion in Neumeier v. Kuehner, 31 N.Y.2d 121, we believe that the application of this rule promises a fair level of
disagreement as to which approach should be adopted.[5] Some 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972), written by Chief Judge Fuld. predictability and uniformity in the application of a rational and
would emphasize the law of the place of the forum, while others See Symposium, Neumier v. Kuehner: A Conflicts Conflict, supra. In modern set of choice of law considerations.
would place more emphasis on the expectations of the parties. Still Neumeier the court was faced with a guest-host accident situation V.
others stress the need to consider the interests of the various involving a citizen of Canada and a resident of New York. Judge Fuld Since the scope of our decision to reject the mechanical application
governmental entities involved. All of the generally accepted admitted that the recent choice of law "approach" in guest-host of the rule of lex loci delicti extends to all multistate tort
approaches, however, suffer from a similar defect; namely, they are controversies, initiated in Babcock v. Jackson, supra, had, until controversies, we must now address ourselves to the question of
all "approaches," to be applied in a more or less ad hoc fashion, and Neumeier, lacked consistency. The New York court then proceeded what rules govern choice of law in Colorado outside the rules laid
containing indeterminate language with no concrete guidelines.
 9

down with respect to host-guest controversies which fit those rules. Chicago was improper, and the plaintiff appeals. The defendant statute of limitations, which the plaintiff contends is applicable to his
We announce that Colorado will adopt the general rule of applying cross-appeals, claiming that the dismissal of the suit should have suit (the defendant disagrees, and their disagreement is the principal
the law of the state with the most "significant relationship" with the been with prejudice because the suit is time-barred. The cross- issue in the appeals), requires that a suit for defamation be brought
occurrence and the parties, as presented and defined in the appeal is proper—and the plaintiff's challenge to it and his request for within a year of the "publication" of the defamatory statement, 735
Restatement, (Second) Conflict of Laws, Vol. 1, Sec. 145 (1969). sanctions for the filing of the cross-appeal is frivolous and itself ILCS 5/13-201; Davis v. Cook County, 534 F.3d *337 650, 654 (7th
Generally, the Restatement requires the application of separate rules sanctionable—because it seeks relief beyond what the defendant Cir.2008)—unless the plaintiff could not have discovered the
to various kinds of torts, and defines "significant contacts" in terms obtained from the district court. Greenlaw v. United States, ___ U.S. defamation within that period. Tom Olesker's Exciting World of
of the issues, the nature of the tort, and the purposes of the tort ___, 128 S. Ct. 2559, 2564, 171 L. Ed. 2d 399 (2008); Stone Container Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill. 2d 129, 334 N.E.2d 160,
rules involved. While this Restatement rule is somewhat broad, it is Corp. v. Hartford Steam Boiler Inspection & Ins. Co., 165 F.3d 1157, 164 (1975); Goodman v. Harbor Market, Ltd., 278 Ill.App.3d 684, 215
no less precise than the concepts of "reasonableness" or "due 1159 (7th Cir. 1999); Abbs v. Sullivan, 963 F.2d 918, 924 (7th Ill. Dec. 263, 663 N.E.2d 13, 17-18 n. 3 (1996); Schweihs v.
process" which courts have applied for many years. Hopefully, at Cir.1992). Burdick, 96 F.3d 917, 920 (7th Cir.1996) (Illinois law).
some time in the future, as the body of case law develops, we can lay The plaintiff had testified against the defendant in a malpractice suit We begin our analysis with the issue of the missing letter to the
down more specific choice of law rules governing other areas, as we in New York, and the defendant had retaliated—according to the American College of Surgeons. To proceed in a libel suit without the
have done today in the area of guest statutes. However, at present, plaintiff's complaint—by mailing a defamatory letter on or about statement that is alleged to be defamatory is unconventional, though
in all areas of multistate tort controversies other than those involving March 1, 2006, to the American College of Surgeons, which is located there are a few such cases. Trail v. Boys & Girls Clubs of Northwest
the situations we have dealt with in the specific rules laid down in Chicago. The defendant had on that day mailed what the plaintiff Indiana, 845 N.E.2d 130, 137-38 (Ind.2006), for example, was a libel
today, we will use and apply the rule articulated in Sec. 145 of the believes to be an identical or nearly identical letter of complaint suit by a disgruntled former employee against his supervisors
Second Restatement on Conflict of Laws. about the plaintiff's testimony to the American Society of Bariatric complaining about a biased report that cast him in a negative light.
VI. Surgeons (now the American Society for Metabolic and Bariatric He had not seen the report, and the court ordered the suit
Surgery), in Florida. That letter is in the record, but the letter to the dismissed, explaining that "without the statement ... the court
Since Colorado law was the appropriate law to be applied to the American College of Surgeons (if there is such a letter) is not, and the cannot actually determine if the statement is legally defamatory."
issues in this case, it was error for the trial court to grant plaintiff has seen neither the original nor a copy. On April 5, We haven't found a case in which such a suit was successful, but we
respondent's summary judgment motion on the grounds that South however, he received a letter from an official of the American don't think there is or should be an absolute rule that without the
Dakota law barred the suit. College of Surgeons, notifying him that the College had received a corpus delicti, as it were, a libel suit must fail. The allegedly libelous
complaint about his testimony as an expert witness in the New York document might have disappeared through no fault of the plaintiff
malpractice suit against the defendant. But the letter did not identify and there might be evidence of its existence and contents, such as
The judgment is reversed and the cause remanded to the trial court the complainant. testimony by persons who had read it—just as key evidence in a
for further proceeding not inconsistent with the views herein slander case, because slander is oral, is the testimony of persons
expressed. The College's disciplinary committee assigned three bariatric
who heard it. Robison v. Lescrenier, 721 F.2d 1101, 1104 (7th
585 F.3d 334 (2009) surgeons to investigate the complaint. In October the College sent
Cir.1983); Simon v. Shearson Lehman Brothers, Inc., 895 F.2d 1304,
Joseph KAMELGARD, Plaintiff-Appellant/Cross-Appellee, the plaintiff a letter charging him with unprofessional conduct. But in
1309 (11th Cir.1990); Gasbarra v. Park-Ohio, Inc., 382 F. Supp. 399,
v. Jerzy MACURA, Defendant-Appellee/Cross-Appellant. March of the following year, after he had informed the College that
403 (N.D.Ill.1974); Israel Travel Advisory Service Inc. v. Israel Identity
Nos. 08-4254, 09-1030. the defendant had been sued for malpractice 30 times, the College
Tours, Inc., No. 92-C-2379, 1994 WL 30984 (N.D.Ill. Jan.28, 1994),
United States Court of Appeals, Seventh Circuit. wrote the plaintiff that its disciplinary committee had "voted to take
affirmed, 61 F.3d 1250 (7th Cir.1995).
Argued September 15, 2009. no further action with regard to this matter."
The plaintiff argues that he asked the College for the letter and the
Decided October 23, 2009. The plaintiff claims not to have known that the defendant was the College wouldn't give it to him—indeed, would neither admit nor
*335 Miles J. Zaremski, Attorney (argued), Zaremski Law Group, source of complaints against him until June 13, 2007, when at a deny the existence of such a letter. He had joined the College as a
Northbrook, IL, for Plaintiff-Appellant. convention in California a bariatric surgeon told him about the defendant; and in its motion to dismiss (which was granted) the
Daniel M. Purdom, Attorney, Adam L. Saper, Attorney, Hinshaw & Florida letter. After that he put two and two together and concluded College argued that if there was such a letter it was privileged by the
Culbertson, Chicago, IL, for Defendant-Appellee. that the defendant must have been the author of the complaint to Illinois Medical Studies Act, 735 ILCS 5/8-2101 ("all information,
Before POSNER, FLAUM, and ROVNER, Circuit Judges. the College. His previous ignorance of the putative source of the interviews, reports, statements, memoranda, recommendations,
*336 POSNER, Circuit Judge. complaint is a little hard to credit, since the College had told him that letters of reference or other third party confidential assessments of a
The plaintiff, a bariatric surgeon who lives and practices in New the complaint concerned his conduct in the malpractice suit against health care practitioner's professional competence, or other data of
Jersey, brought this diversity suit in the federal district court in the defendant. But we'll assume it's true—it has to be, or his goose is ... the Illinois State Medical Society, [or] allied medical societies ...
Chicago. He claims to have been defamed by the defendant, another cooked, because he didn't file this suit until June 3, 2008. That was used in the course of internal quality control ... for improving patient
bariatric surgeon, who practices in New York. The district judge more than a year after the alleged defamation by the two letters but care ... shall be privileged [and] strictly confidential"); Jenkins v.
dismissed the suit without prejudice, on the ground that venue in just under a year after the conversation in California; and the Illinois Wu, 102 Ill. 2d 468, 82 Ill. Dec. 382, 468 N.E.2d 1162, 1168-69
 10

(1984); cf. Austin v. American Association of Neurological When the judge turned down a request by the plaintiff to clarify Fed.R.Civ.P. 41(b), unless the dismissal order states otherwise; and a
Surgeons, 253 F.3d 967, 974 (7th Cir.2001) (Illinois law); by the status what she meant by "discovery rights," the plaintiff's lawyer moved to dismissal on the merits is normally with prejudice and thus a bar to
of the College as a quasi-judicial body, Illinois College of Optometry v. take deposition testimony under Rule 27 of the civil rules. The judge relitigation. Federated Department Stores, Inc. v. Moitie, 452 U.S.
Labombarda, 910 F. Supp. 431, 432-34 (N.D.Ill.1996); and by the referred the motion to a magistrate judge, who held a hearing at 394, 399 n. 3, 101 S. Ct. 2424, 69 L. Ed. 2d 103 (1981); Waypoint
common law privilege for a communication that the defendant had a which he expressed bafflement at the plaintiff's invocation of that Aviation Services Inc. v. Sandel Avionics, Inc., 469 F.3d 1071, 1073
duty to make and did not disseminate any further than rule, which governs depositions taken before suit (to preserve (7th Cir.2006); 9 Charles A. Wright & Arthur R. Miller, Federal
necessary. Kuwik v. Starmark Star Marketing & Administration, evidence) or pending appeal, neither being a concern pertinent to Practice and Procedure § 2373, pp. 739-42 (3d ed.2008). The usual
Inc., 156 Ill. 2d 16, 188 Ill. Dec. 765, 619 N.E.2d 129, 132-35 this case. He asked why the plaintiff wasn't proceeding under Rule exception is where the court gives the plaintiff an opportunity to
(1993); In re Himmel, 125 Ill. 2d 531, 127 Ill. Dec. 708, 533 N.E.2d 45, which governs subpoenas. The plaintiff's lawyer was cure the defect in his complaint by filing an amended
790 (1988); Smock v. Nolan, 361 F.3d 367, 372 (7th Cir.2004) (Illinois unacquainted with that rule and, it soon became clear, was in any complaint. Kaplan v. Shure Brothers, Inc., 266 F.3d 598, 601 (7th
law); J.D. Edwards & Co. v. Podany, 168 F.3d 1020, 1022 (7th event not seeking production of the letter, which he could have done Cir.2001); Bastian v. Petren Resources Corp., 892 F.2d 680, 682 (7th
Cir.1999) (same); Jones v. Western & Southern Life Ins. Co., 91 F.3d (subject to a defense of privilege, Fed.R.Civ.P. 45(c)(3)(A)(iii)) by Cir.1990); McLean v. United States, 566 F.3d 391, 400 (4th Cir.2009).
1032, 1035 (7th Cir.1996) (same). A professional, including a doctor serving a subpoena duces tecum on the College. Fed.R.Civ.P. The judge had already given the plaintiff an opportunity to cure the
(see American Medical Association, Code of Medical Ethics, Opinion 26(b)(1), 45; Gotham Holdings, LP v. Health Grades, Inc., 580 F.3d defect (the absence of the letter or its contents), and the plaintiff's
9.031 ("Reporting Impaired, Incompetent, or Unethical Colleagues"), 664. (7th Cir.2009); Capital Co. v. Fox, 85 F.2d 97, 100-01 (2d lawyer had flubbed it.
June 2004, www.ama-assn. *338 org/ama/pub/physician- Cir.1936) (L.Hand, J.). Instead he wanted to depose the bariatric We are supported in our interpretation of the district judge's actions
resources/medical-ethics/ code-medical-ethics/opinion9031.shtml surgeon who had told him in June 2007 in California about the by the fact that unless she intended to dismiss the claim arising from
(visited Oct. 4, 2009)), has a duty to notify the proper public or investigation by the College and the defendant's letter to the the supposed letter on the merits, her ruling on venue would not
private authorities of unprofessional conduct, which he observes, by American Society of Bariatric Surgeons. make sense. For if that claim were viable, Illinois would be as good a
a fellow professional. The magistrate judge noted that the plaintiff's lawyer had withdrawn venue for litigating it as anywhere, since the parties are residents of
The plaintiff made no effort to obtain the supposed letter to the his motion to proceed under Rule 27, and suggested that he proceed two different states and one of the alleged defamatory statements
American College of Surgeons by compulsory process and seems to under Rule 45 to obtain the letter, but he did not do so. It seems that on which the suit is based was made in Illinois and the other in a
have had no plans to do so. As we'll see, he apparently did not realize he may not know how to use compulsory process to obtain a fourth state, Florida. See 28 U.S.C. § 1391(a)(2); Askew v. Sheriff of
that he could obtain it, however unwilling the College was to divulge document from a third party for use in a proceeding in a federal Cook County, 568 F.3d 632, 636 (7th Cir.2009); Reliance Ins. Co. v.
it, by subpoena under Rule 45 of the civil rules unless the College court. Polyvision Corp., 474 F.3d 54, 59 (2d Cir.2007); Uffner v. La Reunion
prevailed on one of its claims of privilege. Francaise, S.A., 244 F.3d 38, 43 (1st Cir.2001); 14D Charles A. Wright,
The district judge seems to have considered the failure to obtain the
Arthur R. Miller & Edward H. Cooper, Federal Practice and
In light of the plaintiff's failure to obtain the letter, the claim based letter that *339 the plaintiff thinks is in the College's possession fatal
Procedure § 3806.1, pp. 199-216 (3d ed. 2007).
on it is probably going nowhere even if the letter exists and is not to his claim that the letter defamed him. For remember that she had
At argument the plaintiff's lawyer told us that the Florida letter had
privileged. Indeed the claim may have been dismissed already—and said that if he didn't "identify" the defamatory statements that he
been mentioned in the complaint only to "bolster" the claim arising
on the merits, rather than for improper venue. The district judge claimed the defendant had made to the College, she would dismiss
from the conjectured letter to the American College of Surgeons; the
termed the plaintiff's assertion that he could not identify the alleged the case for improper venue, since, as we said, without defamatory
Florida letter was merely circumstantial evidence that the defendant
defamatory statement made by the defendant because "this statements to the College, Illinois has no connection to the suit. He
had written a similar letter to the American College of Surgeons. So if
information is solely in [the College's possession] meritless, given his never did "identify" the statements, and while the dismissal of the
the claim based on the Illinois letter was properly dismissed on the
discovery rights." Later the judge described the plaintiff's complaint suit was without prejudice, probably that was only because the claim
merits, then since the claim based on the Florida letter has been
as "insufficient to the extent Kamelgard claims Macura made against the defendant for defamation by means of the mailing to
abandoned, the defendant is entitled to dismissal of the entire suit
unidentified defamatory statements to ... American College of Florida was still alive when the judge ruled, though that claim was
with prejudice, as he seeks. But there is uncertainty about what the
Surgeons" and therefore "there presently appears to be no venue in abandoned, both in the defendant's reply brief in this court and by
district judge did or meant to do; the *340 defendant has pitched his
this court for Kamelgard's claims against Macura. Unless Kamelgard his lawyer at the oral argument, for reasons explained later in this
defense (and cross-appeal) on a separate ground—choice of law; and
remedies this situation within 10 days, his entire complaint shall be opinion.
the plaintiff has some evidence that there was a defamatory letter to
dismissed without prejudice for lack of venue." Presumably the judge
The most natural interpretation of the district judge's series of the American College of Surgeons. Given the simultaneous mailing to
thought that if the plaintiff couldn't obtain the letter on which he
orders is thus that the plaintiff having failed even to attempt by use Florida and the fact that the defendant was the likeliest person to
based his claim against the College of Surgeons, the claim had no
of process to obtain information that the judge thought vital to his complain to the American College of Surgeons about the plaintiff's
merit and therefore Illinois (where the College's headquarters are
claim of having been defamed in Illinois, that claim was dismissed testimony in a malpractice suit against him, he probably did mail an
located) had no connection to the suit: a New Jersey resident would
under Rule 12(b)(6) (failure to state a claim), leaving just the claim identical or nearly identical letter to the College. Against this it could
be suing in Illinois a New York resident over a letter mailed to Florida
based on the letter to Florida, which did not support venue in Illinois. be argued that the plaintiff's failure to use compulsory process
from New York (presumably—but certainly not from Illinois).
A dismissal for failure to state a claim is a dismissal on the merits, suggests doubt on his part about what that endeavor would have
 11

produced—perhaps no letter, perhaps no defamatory statements in 663, 669 (7th Cir.2009); Kuehn v. Childrens Hospital, 119 F.3d 1296, Defamation, however, is a tort that the old rule, now a presumption,
the letter. But that would be an inference for the jury to draw or not 1301 *341 (7th Cir.1997); Rozenfeld v. Medical Protective Co., 73 very often doesn't fit, because often the defamatory statement is
as it wished. F.3d 154, 155-56 (7th Cir. 1996). Injury is necessary to make an act a communicated in more than one state. There is also ambiguity
tort because there is no tort without an injury. Id. at 156; Janmark, concerning the injury caused by defamation—does it occur just where
So if the claim based on the Illinois letter was properly dismissed on
Inc. v. Reidy, 132 F.3d 1200, 1202 (7th Cir.1997); Kanar v. United the plaintiff incurs some tangible harm such as a loss of income, or
the merits, then since the claim based on the Florida letter has been
States, 118 F.3d 527, 531 (7th Cir.1997); W. Page Keeton et where his reputation is impaired, and if the latter does he have a
abandoned, the defendant is entitled to dismissal of the entire suit
al., Prosser & Keeton on the Law of Torts § 1, p. 4 (5th ed. 1984). The reputation in a state in which the statement is communicated even if
with prejudice, as he seeks. But there is uncertainty about what the
theory of the old rule (if it can be dignified with the word "theory"), no one there has ever heard of him?
district judge did or meant to do; the defendant has pitched his
as explained in the Holmes and Cardozo opinions that we cited, is
defense (and cross-appeal) on a separate ground—choice of law; and When the defamatory statement is communicated in many different
that the right to a tort remedy vests upon injury; the existence and
the plaintiff has some evidence that there was a defamatory letter to states, it makes sense to apply the law of the plaintiff's domicile, and
scope of the right therefore depend on the law of the place of injury;
the American College of Surgeons. Given the simultaneous mailing to that is the usual result in Illinois. See Velle Transcendental
and the vested right, viewed as a piece of property acquired in the
Florida and the fact that the defendant was the likeliest person to Research *342 Ass'n, Inc. v. Esquire, Inc., 41 Ill. App. 3d 799, 354
place of injury, is carried by the plaintiff, like the turtle's shell, to
complain to the American College of Surgeons about the plaintiff's N.E.2d 622, 625 (1976); Snead v. Forbes, Inc., 2 Ill.App.3d 22, 275
wherever he decides to sue.
testimony in a malpractice suit against him, he probably did mail an N.E.2d 746, 748-49 (1971); Rice v. Nova Biomedical Corp., 38 F.3d
The old rule came to seem too rigid, mainly because of such
identical or nearly identical letter to the College. Against this it could 909, 915-16 (7th Cir.1994) (Illinois law), as elsewhere. Selle v.
anomalies as suits between citizens of the same state when it was
be argued that the plaintiff's failure to use compulsory process Pierce, 494 N.W.2d 634, 636-37 (S.D. 1993); Williams v. United
not the state where the accident had occurred. The rule has been
suggests doubt on his part about what that endeavor would have States, 71 F.3d 502, 506 (5th Cir.1995) (Texas law); Reeves v.
reduced, in effect, to a presumption, in Illinois as in other states.
produced—perhaps no letter, perhaps no defamatory statements in American Broadcasting Cos., 719 F.2d 602, 605 (2d Cir.1983) (New
See Ingersoll v. Klein, 46 Ill. 2d 42, 262 N.E.2d 593, 595
the letter. But that would be an inference for the jury to draw or not York law); Hanley v. Tribune Publishing Co., 527 F.2d 68, 70 (9th
(1970); Ferguson v. Kasbohm, 131 Ill. App. 3d 424, 86 Ill. Dec.
as it wished. Cir.1975) (Nevada law); Restatement, supra, § 150(2) and comment e
605, 475 N.E.2d 984, 986-87 (1985); Carris v. Marriott Int'l, Inc., 466
(1971). But see Wainwright's Vacations LLC v. Pan American Airways
So on to choice of law. The defendant argues that the applicable law F.3d 558, 560-61 (7th Cir. 2006) (Illinois law); Spinozzi v. ITT Sheraton
Corp., 130 F. Supp. 2d 712, 721-22 (D.Md.2001) (Maryland law). That
in this case is not Illinois law, as he had thought initially, until the Corp., 174 F.3d 842, 844-45 (7th Cir. 1999) (same); Travelers
is where the principal injury from a defamation will occur because it
district judge had questioned it (and as the plaintiff continues to Indemnity Co. v. Lake, 594 A.2d 38, 47 (Del.1991); Pevoski v.
is where the victim works and lives and where (in the usual case)
argue), but New Jersey law. If he is right, the suit is time-barred Pevoski, 371 Mass. 358, 358 N.E.2d 416, 417 (1976); Restatement
most of the people—family, friends, business associates, etc.—are
because New Jersey, though like Illinois it has a one-year statute of (Second) of Conflict of Laws § 145 comment e, § 146 (1971). We say
found with whom he has personal or commercial transactions, which
limitations for defamation suits, 2A NJSA § 14-3; In re Breen, 113 N.J. "in effect" because most states, including Illinois, nowadays apply the
might be impaired by defamation. Snead v. Forbes, Inc., supra, 275
522, 552 A.2d 105, 111 (1989); Doug Grant, Inc. v. Greate Bay Casino law of the state that has the "most significant relationship" to the
N.E.2d at 748-49; Crane v. New York Zoological Society, 894 F.2d 454,
Corp., 3 F. Supp. 2d 518, 538 (D.N.J.1998), has no discovery rule for claim, e.g., Ingersoll v. Klein, supra; Esser v. McIntyre, 169 Ill. 2d
457 (D.C.Cir.1990); Hanley v. Tribune Publishing Co., supra, 527 F.2d
such suits. Palestri v. Monogram Models, Inc., 875 F.2d 66, 70 (3d 292, 214 Ill. Dec. 693, 661 N.E.2d 1138, 1141 (1996); P.V. ex rel. T.V.
at 70; Fitzpatrick v. Milky Way Productions, Inc., 537 F. Supp. 165,
Cir.1989) (New Jersey law); Lawrence v. Bauer Publishing & Printing v. Camp Jaycee, 197 N.J. 132, 962 A.2d 453, 461
171 (E.D.Pa. 1982). And it is where, according to Learned Hand, he
Ltd., 78 N.J. 371, 396 A.2d 569, 570-71 (1979) (concurring opinion). (2008); Restatement, supra § 145(1), rather than the lex loci
feels the sting of defamation. Hand said that "the gravamen of the
In Williams v. Bell Telephone Laboratories Inc., 132 N.J. 109, 623 A.2d delicti. But as we explained in the Spinozzi case, the state with the
wrong in defamation is not so much the injury to reputation,
234, 239 (1993) (per curiam), the New Jersey supreme court most significant relation to a claim is usually the state in which the
measured by the opinions of others, as the feelings, that is, the
suggested a willingness to reconsider the issue in a future case, but it tort (and therefore the injury) occurred. That state "has the greatest
repulsion or the light esteem, which those opinions
has yet to do so. interest in striking a reasonable balance among safety, cost, and
engender." Burton v. Crowell Publishing Co., 82 F.2d 154, 156 (2d
It used to be a flat rule (called lex loci delicti—the law of the place of other factors pertinent to the design and administration of a system
Cir.1936) (L.Hand, J.).
the wrong) that the law applicable in a tort case is the law of the of tort law. Most people affected whether as victims or as injurers by
The Restatement, while stating that in a defamation case "the state
place where the tort occurred. Slater v. Mexican National R.R., 194 accidents and other injury-causing events are residents of the
of most significant relationship will usually be the state where the
U.S. 120, 126, 24 S. Ct. 581, 48 L. Ed. 900 (1904) (Holmes, J.); Loucks jurisdiction in which the event takes place. So if law can be assumed
person was domiciled at the time," adds—"if the matter complained
v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198, 201-02 (1918) to be generally responsive to the values and preferences of the
of was published in that state." Restatement, supra, § 150(2). In the
(Cardozo, J.); Restatement of Conflict of Laws §§ 377-378 (1934); 2 people who live in the community that formulated the law, the law
law of defamation, the word "published" just means that the
Joseph H. Beale, A Treatise on the Conflict of Laws § 377.2, pp. 1287- of the place of the accident can be expected to reflect the values and
defamatory statement was made to someone other than the
88 (1935). And that means the place where the injury caused by the preferences of the people most likely to be involved in accidents—can
plaintiff. Frank v. Kaminsky, 109 Ill. 26 (1884); Emery v. Northeast
tort occurred. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 316 be expected, in other words, to be responsive and responsible law,
Illinois Regional Commuter R.R., 377 Ill.App.3d 1013, 317 Ill. Dec.
Ill. Dec. 505, 879 N.E.2d 893, 899-900 (2007); Abdullahi v. Pfizer, law that internalizes the costs and benefits of the people affected by
10, 880 N.E.2d 1002, 1009 (2007); Barnes v. Yahoo!, Inc., 570 F.3d
Inc., 562 F.3d 163, 190 (2d Cir.2009); Abad v. Bayer Corp., 563 F.3d it." 174 F.3d at 845.
1096, 1104 (9th Cir.2009). There is no actionable defamation if the
 12

recipient of a letter that libels him, no copy of which has been sent would be among the surgeons most likely to have lost esteem for the Appellate Division of the Supreme Court of New York, Fourth
to anyone else, tears it up without communicating its contents to plaintiff on the basis of the defendant's letter (always assuming that Department.
anyone (that is, without "self-publication," as in Rice v. Nova there was such a letter and that it was defamatory). But none of the Decided July 11, 2014.
Biomedical Corp., supra). For then he cannot suffer an injury to his five lives or practices in Illinois, and none of them is a bariatric Appeal from an order of the Supreme Court, Onondaga County
reputation, or the repulsion that he feels because of the bad opinion surgeon. There is no indication of where the three bariatric surgeons (Deborah H. Karalunas, J.), entered April 2, 2013. The order denied the
of him that readers of the libel form. who evaluated the complaint practice. motion of plaintiff to dismiss certain affirmative defenses of
No defamatory letter, so far as appears, was mailed to New Jersey; defendants.
The plaintiff's argument that he is injured whenever someone reads
there was no "publication" there. But absence of publication in the It is hereby ordered that the order so appealed from is unanimously
or hears about the complaint to the American College of Surgeons
plaintiff's domicile should not be an absolute bar to the application affirmed without costs.
could, if thought a basis for resolving choice of law issues, lead to
of the law of that domicile. What is true, rather, is that the
ridiculous forum-shopping. If a bariatric surgeon in Iceland read a
presumption of the applicability of that law may be rebutted by Memorandum: Plaintiff, a New York resident, commenced this
newspaper article about the complaint against the plaintiff, could the
showing that the plaintiff incurred no harm at all in his domicile state negligence action in New York seeking damages for injuries she
plaintiff ask the Illinois court to apply Icelandic law? The plaintiff has
(an approach intimated in Ramsey v. Fox News Network, LLC, 351 F. sustained in a motor vehicle accident that occurred in Pennsylvania.
no reputation in Iceland to be damaged by an Icelander who reads
Supp. 2d 1145, 1149 (D.Colo.2005), and Arochem Int'l, Inc. v. At the time of the accident, plaintiff was a backseat passenger in a
about him in an Icelandic newspaper, so unless he were planning to
Buirkle, 767 F. Supp. 1243, 1246-47 (S.D.N.Y.1991)), and if no one in vehicle operated by her mother, defendant Deena Lankenau, and
move to that country he wouldn't suffer any injury for which
that state had seen or learned of the defamatory statement, even owned by her father, defendant Douglas Lankenau, both of whom are
defamation law would provide a remedy. Mattox v. News Syndicate
second hand, this would be a powerful rebuttal to the presumption also domiciled in New York. The accident occurred when the Lankenau
Co., 176 F.2d 897, 900 (2d Cir.1949) (L.Hand, J.); Arrowsmith v.
that there was harm there. But notice that Hand's analysis would vehicle collided with a tractor-trailer operated by defendant Patrick K.
United Press Int'l, 320 F.2d 219, 234 (2d Cir.1963) (Friendly, J.);
suggest that the state of the plaintiff's domicile would still be the Boles, an employee of defendant M & S Leasing Co., LLC. Both of those
cf. Restatement, supra, § 145, comment e.
primary site of the plaintiff's injury, implying that its law would defendants are domiciled in New Jersey. In their answers, defendants
It is true that general damages can be awarded in defamation cases
govern, even if the defamation had been communicated entirely to asserted as an affirmative defense that plaintiff failed to mitigate her
against private persons, which is to say damages not based on proof
people in other states and no one in *343 the plaintiff's damages because she was not wearing an available seat belt. Plaintiff
of tangible injury. Cook v. East Shore Newspapers, Inc., 327 Ill.App.
state—besides the plaintiff—was even aware of it. moved to dismiss the affirmative defense, and we conclude that
559, 64 N.E.2d 751, 767 (1945); Dishnow v. School District of Rib
The plaintiff is eager to abandon his Florida claim because it would Supreme Court properly denied the motion.
Lake, 77 F.3d 194, 199 (7th Cir.1996) (Wisconsin law); Israel Travel
make his suit one charging multistate defamation, and would thus
Advisory Service, Inc. v. Israel Identity Tours, Inc., 61 F.3d 1250, 1255
point—although, as we have just seen, not unwaveringly—to the
(7th Cir.1995) (Illinois law); Marcone v. Penthouse Int'l Magazine for Plaintiff contends that the court erred in denying her motion because
application of New Jersey law. He prefers a claim limited to Illinois
Men, 754 F.2d 1072, 1080 (3d Cir.1985) (Pennsylvania law). That is New York's seat belt affirmative defense regulates conduct, and thus
and governed by Illinois law (assuming his Illinois claim survived his
related to Hand's point in the Burton case; in Marcone the court does not apply in a tort dispute arising from an accident that occurred
inability or unwillingness to make a serious effort to obtain the letter
remarked that the plaintiff "was entitled to recover [general in Pennsylvania. We reject that contention. "Conduct-regulating rules
to the College of Surgeons), with its discovery rule. But abandoning
damages] for injury to his reputation as well as for personal have the prophylactic effect of governing conduct to prevent injuries
the Florida claim does not establish that Illinois law should trump
humiliation and mental anguish." 754 F.2d at 1080 (emphasis from occurring" (Padula v Lilarn Props. Corp., 84 N.Y.2d 519, 522
New Jersey law. The American College of Surgeons is located in
added). *344 The same point is made in the Cook case, 64 N.E.2d at [1994]; see generally Schultz v Boy Scouts of Am., 65 N.Y.2d 189, 198
Illinois but is no longer accused of anything, and so Illinois has no
767, an Illinois case. But only New Jersey, where the plaintiff has his [1985]). "`If conflicting conduct-regulating laws are at issue, the law of
interest in the case. Injury to the plaintiff's reputation, if that should
practice and is therefore likely to suffer tangible harm from the jurisdiction where the tort occurred will generally apply because
be presumed to occur every time a bariatric surgeon (or perhaps
defamation that impugns his professional integrity and competence, that jurisdiction has the greatest interest in regulating behavior within
anyone) learns about the complaint to the College, would occur
even if the defamation is not published there, has its borders'" (Padula, 84 NY2d at 522, quoting Cooney v Osgood
wherever members who heard about the complaint live and work,
a substantial interest in protecting him from defamation; and it is Mach., 81 N.Y.2d 66, 72 [1993]). Conversely, where the conflicting
and that could be anywhere in the United States. There is nothing to
therefore New Jersey law that should apply. So the suit is indeed laws serve only to allocate losses between the parties, such as
suggest that more bariatric surgeons heard about it in Illinois than in
time-barred, and should, as the defendant urges in his cross-appeal, vicarious liability or comparative negligence rules, the jurisdiction
New York or New Jersey or California or any other major state. It's
have been dismissed with prejudice. The judgment of the district where the tort occurred has only a minimal interest in applying its own
not as if bariatric surgeons are concentrated in Illinois. Of the 1,712
court dismissing the suit is therefore modified to make the dismissal law (see Schultz, 65 NY2d at 198; Burnett v Columbus McKinnon
members of the American Society for Metabolic and Bariatric
with prejudice. Corp., 69 A.D.3d 58, 60-62 [2009]).
Surgery who are actually practicing surgery, only 54 are in Illinois.
119 A.D.3d 1404 (2014)
(The top states are California, Texas, New York, and Florida, with 193,
990 N.Y.S.2d 394 Here, the conflicting laws relate to whether there is a valid affirmative
180, 117, and 103 such members.) The five members of the College
2014 NY Slip Op 5255 defense of seat belt nonuse. Pennsylvania law prohibits the
of Surgeons' disciplinary committee, which received the complaint
LAURA LANKENAU, Appellant, v. PATRICK K. BOLES et al., presentation of evidence of seat belt nonuse (see 75 Pa Cons Stat Ann
about the plaintiff and referred it to the three bariatric surgeons,
Respondents. (Appeal No. 1.)
 13

§ 4581 [e]; Gaudio v Ford Motor Co., 976 A.2d 524, 536 [Pa Super Ct Hennessey, LLP, Chevy Chase, MD, for Plaintiff–Appellee. Linda Susan S.W.3d 749, 761–63 (Mo. banc 2011) (internal quotations omitted).
2009], appeal denied 605 Pa. 686, 989 A.2d 917 [2010]), while New Svitak, Minneapolis, MN, Joseph Michael Price, Minneapolis, MN, Missouri presumes that a warning, if given, will be
York law allows the trier of fact to consider a plaintiff's failure to wear Deirdre C. Gallagher, Saint Louis, MO, Katharine Ruth Latimer, heeded. Id. Absolute certainty is not required to prove a causal
an available seat belt only in assessing damages and the plaintiff's Washington, DC and Gregory S. Chernack, argued, Washington, DC, connection between a defendant's acts or omissions and the
mitigation thereof (see Spier v Barker, 35 N.Y.2d 444, 449-450 for Defendant–Appellant. plaintiff's injuries. Howard v. Missouri Bone & Joint Ctr., Inc., 615 F.3d
[1974]; Ruiz v Rochester Tel. Co., 195 A.D.2d 981, 981 [1993]). We 991, 996 (8th Cir.2010). A submissible case requires substantial
therefore conclude that the court properly determined that the seat BENTON evidence that the injury is a natural and probable consequence of
belt defense "allocate[s] losses after the tort occurs" (Cooney, 81 the defendant's behavior. Id. Absent compelling evidence that
NY2d at 72). John J. Vecchione, John J. Vecchione Law PLLC, argued, Fairfax, VA, causation is wanting, causation is for the jury. Id.
Roger G. Brown, Jefferson City, MO, John J. Beins, Beins, Goldberg &
We further conclude that Pennsylvania has at best a minimal interest Hennessey, LLP, Chevy Chase, MD, for Plaintiff–Appellee. Linda Susan When Dr. James N. Hueser first prescribed Aredia for Baldwin in July
in applying its own law in this case (see Schultz, 65 NY2d at Svitak, Minneapolis, MN, Joseph Michael Price, Minneapolis, MN, 2003 (and Zometa in September 2003), the risk of ONJ was not
198; Burnett, 69 AD3d at 60-62). The plaintiff and her defendant Deirdre C. Gallagher, Saint Louis, MO, Katharine Ruth Latimer, mentioned in the package inserts. The company modified the inserts
parents are residents of New York, where the seat belt defense is Washington, DC and Gregory S. Chernack, argued, Washington, DC, in September 2003, when ONJ was mentioned only in the “Post–
available. The other defendants are domiciled in New Jersey, which for Defendant–Appellant. Marketing Experiences” section, not in the “Warnings” section.
also permits the seat belt defense (see Waterson v General Motors Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
Corp., 111 N.J. 238, 269-270, 544 A.2d 357, 373-374 [1988]). None of Novartis focuses on Dr. Hueser's testimony that he did not read the
the parties is domiciled in Pennsylvania and, the situs of the tort BENTON, Circuit Judge. inserts before prescribing the drugs (and in fact, claimed to never
notwithstanding, we perceive no basis for applying Pennsylvania law Ruth Baldwin developed osteonecrosis of the jaw (ONJ) after two of read inserts before prescribing any drugs). Novartis believes this
to deny a potential affirmative defense (see generally Neumeier v her teeth were extracted. She sued, alleging Novartis severs any link between its duty to warn and Baldwin's injuries.
Kuehner, 31 N.Y.2d 121, 128 [1972]). Pharmaceuticals Corporation negligently failed to provide adequate
Novartis maintains, “The majority of courts that have examined the
warnings for two drugs she took, Aredia and Zometa. After a jury
issue have held that when a physician fails to read or rely on a drug
trial, Baldwin, by her executor, received $225,000 in compensatory
We recognize that New York has adopted a statutory seat belt defense manufacturer's warnings, such failure constitutes the ‘intervening,
damages, plus certain costs. Novartis appeals,arguing the district
subsequent to Spier, which is largely conduct-regulating (see Vehicle independent, and sole proximate cause’ of the plaintiff's
court: (1) improperly found that inadequate warnings proximately
and Traffic Law § 1229-c [8]). Nevertheless, section 1229-c (8) did not injuries, even where the drug manufacturer's warnings were
caused Baldwin's injuries; (2) erred in applying Missouri law to the
supersede Spier and, therefore, the common-law seat belt defense inadequate.” Thom v. Bristol–Myers Squibb Co., 353 F.3d 848,
punitive damages claim; (3) abused its discretion in admitting
remains valid, as employed here (see Hamilton v Purser, 162 A.D.2d 856 (10th Cir.2003) (emphasis in original). See also Johnson v.
hearsay evidence; and (4) abused its discretion in awarding the costs
91, 93 [1990]; 1A NY PJI3d 2:87 at 495 [2014]; PJI 2:87.1, 2:87.2). "The Medtronic, Inc., 365 S.W.3d 226, 233 (Mo.App.2012) (finding no
for depositions conducted as part of multi-district litigation. Having
fact that [Pennsylvania] law did not require plaintiff to wear [her] seat proximate causation where a doctor failed to read instructions and
jurisdiction under 28 U.S.C. § 1291, this court affirms in part, vacates
belt at the time of the accident is of no moment" (Gardner v Honda warnings printed on a defibrillator before using it); Nelson v. Ford
in part, and remands.
Motor Co., 145 A.D.2d 41, 47 [1988], lv dismissed 74 N.Y.2d 715 Motor Co., 150 F.3d 905, 907 (8th Cir.1998) (stating “it was not
I.
[1989]; see Ruiz, 195 AD2d at 981). shown that modified or additional warnings would likely have
Novartis seeks judgment as a matter of law, arguing Baldwin did not
We have reviewed plaintiff's remaining contentions and conclude that prevented the accident” after plaintiff testified “he had not
establish that her injuries were proximately caused by inadequate
they lack merit. consulted the existing warnings because he thought he knew how to
warnings. This court reviews de novo a district court's grant or denial
Winter v. Novartis Pharm. Corp. use the [car] jack”) (applying Missouri law).
of a motion for judgment as a matter of law. Liberty Mut. Fire Ins. Co.
Nos. 12–3121 12–3409. v. Scott, 486 F.3d 418, 422 (8th Cir.2007). This court reviews the
2014-01-9 evidence most favorably to the non-moving party, drawing all Novartis's focus ignores the other ways Dr. Hueser would receive
Christine WINTER, Individually and as Executor of the Estate of Ruth reasonable inferences and resolving all factual disputes in its warnings. See In re Levaquin Prods. Liab. Litig., 700 F.3d 1161, 1168–
Baldwin, Deceased, Plaintiff–Appellee v. NOVARTIS favor. Id. 69 (8th Cir.2012) (stating that “failure to read a warning does not
PHARMACEUTICALS CORPORATION, Defendant–Appellant. Christine necessarily bar recovery” and discussing the importance of sales
Winter, Individually and as Executor of the Estate of Ruth Baldwin, representatives and “Dear Doctor” letters in providing warnings)
Deceased, Plaintiff–Appellee v. Novartis Pharmaceuticals Under Missouri law, “it is incumbent upon the manufacturer to bring
(applying Minnesota law). In this case, there is evidentiary support
Corporation, Defendant–Appellant. the warning home to the doctor.” Krug v. Sterling Drug, Inc., 416
for other ways that warnings could have reached Dr.
S.W.2d 143, 146 (Mo.1967) (internal quotations omitted). To
Hueser. See Pustejovsky v. Pliva, Inc., 623 F.3d 271, 277 (5th
establish proximate causation in a failure-to-warn claim, a plaintiff
John J. Vecchione, John J. Vecchione Law PLLC, argued, Fairfax, VA, Cir.2010) (affirming summary judgment because there was no
“must show that a warning would have altered the behavior of the
Roger G. Brown, Jefferson City, MO, John J. Beins, Beins, Goldberg & individuals involved in the accident.” Moore v. Ford Motor Co., 332 “evidentiary support” for “other ways an adequate warning might
 14

have reached” a physician). While Dr. Hueser did not read drug II. depecage. See Restatement (Second) of Conflict of Laws § 146 cmt.d
inserts, there was testimony that he obtained pharmaceutical Novartis alternatively seeks a new trial, arguing the district court (1971) ( “The courts have long recognized that they are not bound to
warnings through other means—continuing medical education, erred in applying Missouri law to Baldwin's punitive damages claim. decide all issues under the local law of a single state.”).
review of medical literature, discussion with other physicians, and Though the jury did not award punitives, Novartis asserts that the
statements by Novartis's sales representative. punitive evidence impermissibly tainted the jury's consideration of The district court correctly held that Missouri has the “most
liability and compensatory damages. This court reviews de novo the significant relationship” to the punitive damages claim. Missouri is
Novartis knew of the risk of ONJ as early as 2002, but instructed its district court's choice-of-law determination. Dorman v. Emerson the place where the injury occurred, making it presumptively the
sales force not to mention the disease when making calls to Elec. Co., 23 F.3d 1354, 1358 (8th Cir.1994). state with the most significant relationship. Dorman, 23 F.3d at
physicians. The sales representative assigned to Dr. Hueser testified 1358;Thompson, 833 S.W.2d at 870. Missouri is where Novartis's
that he did not discuss the disease with Dr. Hueser until late District courts sitting in diversity apply the choice-of-law rules of the sales representatives failed to warn Baldwin's doctor, making it also,
September 2004. By then, Baldwin had been taking the drugs for 13 state where they sit. Whirlpool Corp. v. Ritter, 929 F.2d 1318, at least in part, the state of the conduct causing the injury. New
months, and ONJ had been triggered by the extraction of two of her 1320 (8th Cir.1991), citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 Jersey may have an interest in its corporations being governed by its
teeth. Also, the “Dear Doctor” letter warning of ONJ was not sent to U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under Missouri's punitive damages provisions, but as the district court held, Missouri
Dr. Hueser until September 2004, after ONJ had been triggered. By choice-of-law rules, courts apply the substantive law of the state has a strong interest in applying its punitive damages laws to deter
that time, Baldwin's expert testified that ONJ had become a “growing with the “most significant relationship” to the occurrence and the conduct by corporations doing business in Missouri that harms
epidemic.” On these facts, a reasonable jury could find that Novartis parties. Fuqua Homes, Inc. v. Beattie, 388 F.3d 618, 621 (8th Missouri residents. New Jersey's interest, balanced against
prevented warnings about ONJ from reaching Dr. Hueser. Cir.2004), citing Thompson v. Crawford, 833 S.W.2d 868, 870 (Mo. Missouri's, does not overcome Missouri's presumption that the law
banc 1992). Missouri, adopting the Restatement (Second) of Conflict of the place of injury should apply. See In re NuvaRing Prods. Liab.
Novartis finally argues that, even if Dr. Hueser had received a of Laws, requires consideration of four factors in determining the Litig., Nos. 4:08–MD–1964, 4:08–CV–00558, 2013 WL 3716390, at
warning, he would still have prescribed Aredia and Zometa. applicable law for tort actions: “the place where the injury *6 (E.D.Mo. July 12, 2013)(holding in a pharmaceutical action that
According to Novartis, Baldwin should have submitted proof that Dr. occurred,” “the place where the conduct causing the injury Missouri has a more significant relationship to a punitive damages
Hueser would not have prescribed the drugs if he had received the occurred,” “the domicil, residence, nationality, place of incorporation claim than New Jersey under Missouri's choice-of-law approach). The
warnings the company eventually provided. See Moore, 332 S.W.3d and place of business of the parties,” and “the place where the district court did not err in applying Missouri punitive damages law.
at 761 (requiring a plaintiff to “show that a warning would have relationship, if any, between the parties is centered.” Fuqua III.
altered the behavior of the individuals involved in the accident”). Homes, 388 F.3d at 621,citing Restatement (Second) of Conflict of Novartis seeks a new trial for another reason, that the district court
Novartis claims the lack of such testimony severs proximate Laws § 145 (1971). More importantly, for personal injury actions, admitted hearsay evidence that tainted the jury. This court
causation. Missouri applies the law of the place of injury, unless some other “review[s] de novo the district court's interpretation and application
state has a more significant relationship. Thompson, 833 S.W.2d at of the rules of evidence, and review[s] for abuse of discretion the
870. Missouri's formulation “essentially establishes a presumption factual findings supporting its evidentiary rulings.” Weems v. Tyson
Novartis's argument fails because a change in prescribing patterns
that the state with the most significant relationship is the state Foods, Inc., 665 F.3d 958, 964 (8th Cir.2011). A new trial will be
after receiving a warning is enough to create a submissible
where the injury occurred.” Dorman v. Emerson Elec. Co., 23 F.3d awarded only if an evidentiary ruling constituted a clear and
case. Hanrahan v. Wyeth, Inc., No. 4:04CV01255ERW, 2012 WL
1354, 1358 (8th Cir.1994). See also Restatement (Second) of Conflict prejudicial abuse of discretion affecting a substantial right of the
2395881, at *10 (E.D.Mo. June 25, 2012). See also In re Levaquin
of Laws § 146 (1971). objecting party. Id.
Prods. Liab. Litig., 700 F.3d at 1168–70 (applying Minnesota law); In
re Prempro Prods. Liab. Litig., 586 F.3d 547, 569–70 (8th Cir.2009)
(applying Arkansas law). Baldwin introduced evidence that Dr. Novartis argues that New Jersey has the most significant relationship Through MedWatch—the FDA's “adverse event reporting”
Hueser stopped prescribing the drugs once he learned of the risk of to the punitive damages claim because that state is the site of any program—medical providers tell the FDA and the drug manufacturer
ONJ. A reasonable jury could conclude that Dr. Hueser would not labeling and marketing misconduct. Baldwin's punitive damages about pharmaceutical problems. The district court admitted several
have prescribed the drug for Baldwin if he had been warned. claim would be barred by the New Jersey Products Liability ONJ-related MedWatch forms from 2002. Each had a checkmark by
Act. See N.J. Stat. Ann. § 2A:58C–5c (2013) (“Punitive damages shall (unidentified) healthcare providers that copies of the forms were
not be awarded if a drug ... which caused the claimant's harm was sent to the manufacturer, Novartis. Baldwin used these forms to
On these facts, a jury could reasonably find that Baldwin's injury was
subject to premarket approval or licensure by the federal Food and prove that Novartis received reports of ONJ as early as September
the “natural and probable consequence” of Novartis's
Drug Administration ... and was approved or licensed.”). Novartis's 2002. Novartis responded that the checkmarks did not indicate
behavior. See Howard, 615 F.3d at 996 (“A submissible case is made
domestic operations are headquartered in New Jersey, where it receipt, offering evidence that it did not receive the forms until 2005.
if substantial evidence is presented that shows the injury is a natural
interacts with the Food and Drug Administration (FDA). Moreover,
and probable consequence of a defendant's negligence.”) (internal
Novartis contends that Missouri's interest is only to compensate Novartis correctly reasons that the MedWatch checkmarks are
quotations omitted).
Baldwin, not to impose punitive damages, and these claims are inadmissible hearsay, out-of-court assertions offered for their
severable under the Second Restatement's rule of
 15

truth—that the forms were sent to and received by Novartis. The regarding the Rye Funds. Tremont claimed that it was offering
checkmarks are not within any hearsay exception. FUTURESELECT v. TREMONT GROUP HOLDINGS FutureSelect a rare, and potentially fleeting, opportunity to invest
FUTURESELECT PORTFOLIO MANAGEMENT, INC.; FutureSelect Prime with Madoff. Tremont also made assurances about its oversight and
Nonetheless, Novartis has not demonstrated the prejudice required Advisor II LLC; The Merriwell Fund, LP; and Telesis IIW, LLC, understanding of Madoff's operation. Relying on these assurances and
for a new trial. Admission of the checkmarks is harmless error Respondents, v. TREMONT GROUP HOLDINGS, INC.; Tremont the audit opinions of the accounting firm hired by Tremont,
because they are cumulative of other trial testimony that Novartis Partners, Inc.; Oppenheimer Acquisition Corporation; Massachusetts FutureSelect decided to invest in the Rye Funds in 1998. FutureSelect
knew of the risk of ONJ in December 2002, months before Baldwin's Mutual Life Insurance Co.; and Ernst & Young LLP, Petitioners, and and Tremont had monthly ongoing communications about Madoff
prescription. Smith v. Firestone Tire & Rubber Co., 755 F.2d 129, Goldstein Golub Kessler LLP and KPMG LLP, Defendants. and the performance of the Rye Funds. Tremont claimed that its
132 (8th Cir.1985) (“Improper admission of evidence which is Supreme Court of Washington, En Banc. ongoing oversight and testing of Madoff proved satisfactory. Tremont
cumulative of matters shown by admissible evidence is harmless July 17, 2014 also provided FutureSelect with purported facts proving the health of
error.”). Even without the MedWatch forms, a reasonable jury could GONZÁLEZ, J. the Rye Funds.
conclude that Novartis's warnings were insufficient and untimely for
Baldwin. ¶ 1 Between 1997 and 2008, FutureSelect, a Redmond based financial ¶ 5 Between 1998 and late 2008, when Madoff's Ponzi scheme finally
IV. company, invested nearly $200 million in Tremont's Rye Funds, which came to light, FutureSelect continued to invest more funds in the Rye
Novartis contends that the district court abused its discretion in pooled and fed money into Bernie Madoff's fraudulent securities Funds as a result of the representations it regularly received from
awarding litigation-wide costs to an individual plaintiff. This court investment scheme. These investments were lost when Madoff's Tremont and its auditors. In all, FutureSelect invested $195 million
reviews de novo the legal issues about the award of costs and fraud unraveled. FutureSelect sued Tremont, Oppenheimer with Tremont. But, Madoff never invested any of the capital he
reviews for abuse of discretion the actual award of costs. Craftsmen Acquisition Corp. and MassMutual (Tremont's parent companies), and received through the Rye Funds or any other feeder. FutureSelect lost
Limousine, Inc. v. Ford Motor Co., 579 F.3d 894, 896 (8th Cir.2009). Ernst & Young and Tremont's other auditors for their failure to its entire investment. Believing that Tremont had significantly misled
conduct due diligence on Madoff's operations. FutureSelect alleged it, FutureSelect sued Tremont; MassMutual and Oppenheimer
This case is one of over 650 cases in multidistrict litigation for violations of the Washington state securities act (WSSA), chapter (Tremont's parent companies); and Ernst & Young, KPMG,2 and
consolidated pre-trial proceedings and discovery. Baldwin, the 21.20 RCW; negligence; and negligent misrepresentation. Goldstein Golub Kessler (Tremont's auditors).3
prevailing party, sought transcription costs for 18 depositions used
throughout the consolidated MDL proceedings. See Fed.R.Civ.P. ¶ 2 The trial court dismissed on the pleadings, finding Washington's ¶ 6 In its complaint, FutureSelect alleged that the defendants are
54(d). The district court, noting that this is the first case where costs security law did not apply and that Washington courts did not have liable for (1) violating RCW 21.20.0104 and RCW 21.20.430, (2)
were requested, awarded the full cost of $88,930.25. Novartis claims jurisdiction over Oppenheimer. The Court of Appeals reversed. negligence,5 and (3) negligent misrepresentation.6 According to the
the district court should have allocated the costs pro rata among the Defendants seek to reinstate the trial court's findings. Oppenheimer complaint, Tremont's liability is based on the direct
various cases. argues that it lacks the requisite minimum contacts with Washington misrepresentations made by Tremont to FutureSelect that
for personal jurisdiction. The defendants collectively argue that FutureSelect relied on in making, maintaining, and adding to its
Where litigation costs are incurred in connection with more than one dismissing for failure to state a claim is appropriate because New York investment in the Rye Funds. It alleged that Tremont acted as
proceeding, the district court should allocate the costs. See Marmo v. law — which does not provide for a private cause of action under its MassMutual and Oppenheimer's agent or apparent agent.7 It alleged
Tyson Fresh Meats, Inc., 457 F.3d 748, 764 (8th Cir.2006) (“[A] state securities act, rather than Washington law, which does — Ernst & Young made direct misrepresentations8 that FutureSelect
division of ... costs among the thirteen cases was equitable.... applies. Ernst and Young also contends that it is not a "seller" under relied on in maintaining and adding to its investment in the Rye Funds.
[A]pportionment reduced the risk of duplicative cost recovery.”). See the WSSA. We affirm the Court of Appeals. The defendants filed separate motions to dismiss on the pleadings.
also Ortho–McNeil Pharm., Inc. v. Mylan Labs. Inc., 569 F.3d 1353, Without stating the specific grounds for dismissal, the trial court
FACTS granted these motions in full after conducting a hearing and
1358 (Fed.Cir.2009) (applying Fourth Circuit law) (vacating a district ¶ 3 The lead plaintiff, FutureSelect Portfolio Management Inc., is
court's award of litigation-wide expenses and remanding for considering a number of pleadings, declarations, and briefs. Future-
headquartered in Washington and manages a number of investment Select obtained a CR 54(b) order granting final judgment on the
apportionment among all cases). The district court abused its funds. The first named defendant, Tremont Partners Inc., is
discretion in awarding the plaintiff full costs for litigation-wide dismissals, allowing this appeal.
headquartered in New York and serves as the general partner to the
depositions. Rye Funds,1 whose status as feeder funds to Bernard L. Madoff
Investment Securities LLC (Madoff) is at the heart of this dispute. ¶ 7 The Court of Appeals reversed in part and affirmed in part, finding
****** that (1) Washington has the most significant relationship to the state
The judgment in appeal 12–3121 is affirmed. The judgment in appeal securities act claims, negligent misrepresentation claims, and agency
¶ 4 The relationship between FutureSelect and Tremont began when claims; (2) the complaint sufficiently alleged personal jurisdiction over
12–3409 is vacated. The case is remanded. a Tremont representative visited FutureSelect's Redmond offices in Oppenheimer; and (3) the trial court properly dismissed the apparent
1997 to solicit FutureSelect's investment in the Rye Funds. This agency claim against Oppenheimer and negligence claim against
initiated a series of discussions between FutureSelect and Tremont
 16

Tremont. FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, forum state; (2) the cause of action must arise from, or be connected Oppenheimer transacted business with FutureSelect in Washington
Inc., 175 Wn.App. 840, 890-95, 309 P.3d 555 (2013). We granted with, such act or transaction; and (3) the assumption of jurisdiction through its agent.
review and now affirm the Court of Appeals. by the forum state must not offend traditional notions of fair play
ANALYSIS and substantial justice, consideration being given to the quality, ¶ 14 We turn now to whether the assumption of jurisdiction offends
nature, and extent of the activity in the forum state, the relative traditional notions of fair play and substantial justice. Weighing (1) the
I. Standard of review quality, nature, and extent of Oppenheimer's activity in Washington,
convenience of the parties, the benefits and protection of the laws of
¶ 8 We review CR 12(b)(6) dismissals de novo. Kinney v. Cook, 159 (2) the convenience of the parties, (3) the benefits and protection of
the forum state afforded the respective parties, and the basic
Wn.2d 837, 842, 154 P.3d 206 (2007) (citing Tenore v. AT & T Wireless Washington law, and (4) the basic equities of the situation, we
Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)). "Dismissal is equities of the situation. conclude it does not.
warranted only if the court concludes, beyond a reasonable doubt, the
plaintiff cannot prove `any set of facts which would justify Shute v. Carnival Cruise Lines, 113 Wn.2d 763, 767, 783 P.2d 78 (1989)
recovery.'" Id. (quoting Tenore, 136 Wash.2d at 330, 962 P.2d 104). (quoting Deutsch v. W. Coast Mach. Co., 80 Wn.2d 707, 711, 497 P.2d ¶ 15 First, the quality, nature, and extent of Tremont's activity in
All facts alleged in the complaint are taken as true, and we may 1311 (1972)). This inquiry encompasses both the statutory and due Washington were significant. The business relationship with
consider hypothetical facts supporting the plaintiff's process concerns of exercising personal jurisdiction. FutureSelect extended from 2001 until 2008; involved the solicitation,
claim. Id. "Therefore, a complaint survives a CR 12(b)(6) motion offer, and sale of securities; and resulted in ongoing transfers of
if any set of facts could exist that would justify recovery." Hoffer v. ¶ 11 FutureSelect alleges jurisdiction is proper under RCW extremely large sums of money from Washington to Oppenheimer via
State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988) (citing Lawson v. 4.28.185(1)(a), which extends jurisdiction arising out of "[t]he Tremont.
State, 107 Wn.2d 444, 448, 730 P.2d 1308 (1986); Bowman v. John transaction of any business within this state," on the theory that
Doe Two, 104 Wn.2d 181, 183, 704 P.2d 140 (1985)). But, "[i]f a Oppenheimer transacted business in Washington through Tremont, ¶ 16 Second, nothing in the record suggests that Washington courts
plaintiff's claim remains legally insufficient even under his or her its agent. RCW 4.28.185(1) explicitly permits Washington courts to exercising jurisdiction would pose an undue burden on Oppenheimer.
proffered hypothetical facts, dismissal pursuant to CR 12(b)(6) is exercise jurisdiction over a principal based on the actions of its
appropriate." Gorman v. Garlock, Inc., 155 Wn.2d 198, 215, 118 P.3d agent.9 We apply the Shute factors to the allegations contained in ¶ 17 Finally, the benefits and protections of Washington law as well as
311 (2005). Similarly, we review a CR 12(b)(2) dismissal de novo. In re FutureSelect's complaint, which we accept as true given the the equities of the situation cut squarely in favor of our courts
Estate of Kordon, 157 Wn.2d 206, 209, 137 P.3d 16 (2006) procedural posture of this case. exercising jurisdiction. Our law explicitly protects investors from fraud
(citing State v. Squally, 132 Wn.2d 333, 340, 937 P.2d 1069 (1997)). and misrepresentations made by sellers of securities. See RCW
B. Shute factors
II. Personal jurisdiction 21.20.010. Not allowing Washington courts to enforce our statutes
¶ 12 First, we find the complaint sufficiently establishes that Tremont
¶ 9 Oppenheimer argues that it lacks the requisite minimum contacts acted as Oppenheimer's agent for purposes of the CR 12 motion. The and regulations against nonresident companies that solicit, offer, and
with Washington and our courts' exercise of personal jurisdiction complaint asserts that Oppenheimer (1) owned, directed, influenced sell securities in this state would undermine the efficacy of this
would offend due process. See Suppl. Br. of Oppenheimer at 7. It is management, and provided support services10 to Tremont; (2) regulatory regime and create a perverse incentive for principals to
mistaken. At this stage of litigation, the allegations of the complaint directed Tremont to change its auditor from Ernst & Young to KPMG; insulate themselves from liability by operating exclusively through
establish sufficient minimum contacts to survive a CR 12(b)(2) motion. (3) placed its own president and director, who was also a vice agents.
However, Oppenheimer may renew its jurisdictional challenge after president at MassMutual, on Tremont's board of directors;11 and (4)
appropriate discovery has been conducted. actively managed and used its image to help Tremont with marketing ¶ 18 Given these considerations, we reverse the trial court and
and soliciting investment activity. For the purposes of the motion to remand for further proceedings. Though we leave open
A. Specific jurisdiction
Oppenheimer's ability to renew its motion, we find the trial court
¶ 10 For the exercise of specific jurisdiction under Washington's long dismiss, we find agency.
dismissed prematurely. Some limited discovery and a resolution of
arm statute to be proper, the defendant's conduct must fall under
disputed jurisdictional facts are warranted. The trial court should
RCW 4.28.185 and the exercise of jurisdiction must not violate ¶ 13 Accepting the agency relationship, we find the complaint also
determine whether an agency relationship existed between
constitutional principles. Grange Ins. Ass'n v. State, 110 Wn.2d 752, adequately alleges that Tremont's misrepresentations, which we
Oppenheimer and Tremont at any point during the relevant time
756, 757 P.2d 933 (1988) (citing Werner v. Werner, 84 Wn.2d 360, presume without deciding were made on Oppenheimer's behalf and
period and, if so, whether jurisdiction is proper under
364, 526 P.2d 370 (1974)). "In order to subject nonresident received in Washington, satisfy the first two Shute factors. Tremont
the Shute factors.
defendants and foreign corporations to the in personam jurisdiction directed numerous representations at FutureSelect. As a result of
of this state under RCW 4.28.185(1)(a)," Washington's long arm these representations, FutureSelect maintained and contributed
statute, we must find the following factors: millions of dollars to its initial investment in the Rye Funds. Much of III. Choice of law
this occurred after Oppenheimer's acquisition of Tremont. ¶ 19 Next, we turn to whether Washington or New York law applies to
(1) The nonresident defendant or foreign corporation must Accordingly, the allegations in the complaint sufficiently establish that this case. Defendants argue that New York law applies because New
purposefully do some act or consummate some transaction in the York has the more significant relationship to the dispute and that
 17

dismissal on the pleadings was warranted because there is no private each interested jurisdiction. Id. The "approach is not merely to count Corp., 70 Wash.2d at 900, 425 P.2d 623). The record is insufficient to
cause of action under New York's state security law. On this record, contacts, but rather to consider which contacts are most significant permit us to engage in this inquiry, and so we leave it open.
we disagree.12 The allegations in the complaint are sufficient to and to determine where these contacts are found." Johnson, 87 ¶ 27 In short, we find the contacts pleaded by FutureSelect to be
survive the defendants' CR 12(b)(6) motion. Wash.2d at 581, 555 P.2d 997 (citing Baffin Land Corp. v. Monticello sufficient to survive the defendants' CR 12(b)(6) motions on the choice
Motor Inn, Inc., 70 Wn.2d 893, 900, 425 P.2d 623 (1967)). Second, of law issue.17
A. Actual conflict
¶ 20 As a preliminary matter, when choice of law is disputed, "there courts will continue to evaluate the interests and public policies of 2. Interests and public policies of jurisdictions
must be an actual conflict between the laws or interests of potentially concerned jurisdictions. Southwell, 101 Wash.2d at ¶ 28 Next, we turn to the second step of our analysis, which asks us to
Washington and the laws or interests of another state before 204, 676 P.2d 477. "The extent of the interest of each potentially evaluate the interests and public policies of the
Washington courts will engage in a conflict of laws analysis." Seizer v. interested state should be determined on the basis, among other jurisdictions. Southwell, 101 Wash.2d at 204, 676 P.2d 477. Here,
Sessions, 132 Wn.2d 642, 648, 940 P.2d 261 (1997) (citing Burnside v. things, of the purpose sought to be achieved by their relevant local Washington has a more compelling interest in protecting its investors
Simpson Paper Co., 123 Wn.2d 93, 100-01, 864 P.2d 937 (1994)). law rules and the particular issue involved." Id. (citing Johnson, 87 from fraud and misrepresentation than New York does in regulating
Here, an actual conflict exists between the WSSA, ch. 21.20 RCW, and sellers of securities that may have perpetrated fraud or
Wash.2d at 582, 555 P.2d 997).
New York's Martin Act, N.Y. Gen. Bus. Law art. 23-A, §§ 352-359. misrepresentation in another state.
Specifically, the WSSA provides for a private right of action, see RCW 1 . E v a l u a t i o n o f c o n t a c t s
21.20.430, while New York's Martin Act does not, see N.Y. Gen. Bus. ¶ 24 Under § 148, to determine the jurisdiction with the most ¶ 29 At its core, this case does not involve a generalized regulation of
Law art. 23-A, §§ 352-359. significant relationship to the dispute, we must consider (1) the place securities sales, but the weighing of specific representations and
where plaintiff acted in reliance on the representations; (2) the place assurances that allegedly targeted Washington investors. Washington
B. Significant relationship test.
where the plaintiff received the representations; (3) the place where has a strong interest in giving Washington investors the benefit of
¶ 21 To settle choice of law questions, Washington uses the most
the defendant made the representations; (4) the domicile, residence, Washington law and in requiring the sellers of securities to comply
significant relationship test as articulated by Restatement (Second) of
nationality, place of incorporation, and place of business of the with it.
Conflict of Laws § 145 (1971).13 Johnson v. Spider Staging Corp., 87
parties; (5) the place where a tangible thing, which is the subject of
Wn.2d 577, 580-81, 555 P.2d 997 (1976). FutureSelect argues we
the transaction between the parties, was situated at the time; and (6)
should also formally adopt § 148, which refines the § 145 factors for ¶ 30 We recognize the legislature's directive to interpret the WSSA to
the place where the plaintiff is to render performance under a
the fraud and misrepresentation context. See Suppl. Br. of Resp'ts at promote uniformity with federal securities law and those of others
contract that he has been induced to enter by the false
6. Defendants, on the other hand, urge us to take an orthodox states. RCW 21.20.900. But "[o]ur examination does not end
representations of the defendant. RESTATEMENT § 148.
interpretation of Haberman v. Washington Public Power Supply there." Kinney, 159 Wash.2d at 844, 154 P.3d 206. "The Washington
14
System, 109 Wn.2d 107, 135-36, 744 P.2d 1032 (1987), and apply § Act is unique; special emphasis is placed on protecting investors from
145 exclusively. See Suppl. Br. of Tremont et al. at 5; Ernst & Young ¶ 25 Much like in Southwell, this case has "not presented this court fraudulent schemes." Id. at 844, 154 P.3d 206 (citing Hoffer v.
LLP's Suppl. Br. at 2-3. We agree with FutureSelect. with a record that is sufficiently developed to enable us to undertake State, 113 Wn.2d 148, 152, 776 P.2d 963 (1989) (Hoffer II)). Indeed,
the factual analysis necessary for proper resolution of the conflicts we have stated that "the `primary purpose' of the Act is `to protect
issue involved." 101 Wash.2d at 205, 676 P.2d 477. But for purposes investors from speculative or fraudulent schemes of
¶ 22 Haberman and § 145 provide a basic framework for choice of law
of reviewing dismissal under a CR 12(b)(6) motion, we look to the promoters.'" Go2Net, Inc. v. Freeyellow.com, Inc., 158 Wn.2d 247,
questions.15 But we have not shied from applying a different, more
complaint and conclude that FutureSelect could show that (1) 253, 143 P.3d 590 (2006) (emphasis omitted) (quoting Cellular Eng'g,
specific section of the Restatement when warranted by a particular
Washington was the place where FutureSelect acted in reliance on the Ltd. v. O'Neill, 118 Wn.2d 16, 23, 820 P.2d 941 (1991)). "The Act `is
tort. E.g., Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 735 n.
representations, (2) Washington was the place where FutureSelect remedial in nature and has as its purpose broad protection of the
6, 254 P.3d 818 (2011) ("On remand the Court of Appeals will have to
received the representations, (3) Washington and New York were the public.'" Id. (emphasis omitted) (quoting McClellan v. Sundholm, 89
review the trial court's choice of law ruling, giving application to
places where the defendants made the representations, (4) Wn.2d 527, 533, 574 P.2d 371 (1978)). Applying New York rather than
the Restatement (Second) of Conflict of Laws § 146 [Personal
Washington and New York were the primary places of business of the Washington law, which would deprive FutureSelect of a private cause
Injuries]"). Given the nature of misrepresentation, we find the factors
parties, and (5) it cannot be determined either way where of action, would necessarily frustrate this purpose. We decline to do
in § 148 to be more helpful than those in § 145.
FutureSelect was to render performance under the contract that it so without clear evidence that New York has the more significant
had been induced to enter by the false representations of the relationship to the dispute, which does not necessarily follow from
¶ 23 Previously, we developed a two-step analysis for the significant defendant.16
this record.
relationship inquiry under § 145. Southwell v. Widing Transp., Inc., 101
Wn.2d 200, 204, 676 P.2d 477
¶ 26 To complete this analysis, we must "consider which contacts are
most significant" in addition to finding out where they are IV. Definition of "seller" under WSSA
(1984). Our adoption of § 148 does not alter this approach. found. Johnson, 87 Wash.2d at 581, 555 P.2d 997 (citing Baffin Land ¶ 31 The final question at issue involves whether Ernst & Young can
Accordingly, first, courts will continue to evaluate the contacts with be considered a seller under the WSSA. Ernst & Young argues that
 18

because FutureSelect refers only to its audits and audit reports, which
CONCLUSION
are purely professional services, and nothing related to the sale of
¶ 37 Because FutureSelect has met its initial burden of production, we
securities, the trial court properly granted its motion to dismiss. Ernst
reverse the trial court's dismissal on the pleadings. On remand, the
& Young LLP's Suppl. Br., at 17-18. We disagree.
trial court shall (1) allow limited discovery on the jurisdictional issue
and, if necessary, conduct a jurisdictional hearing to resolve any
¶ 32 The WSSA imposes civil liability on anyone who sells a security in contested material facts and (2) give the parties an opportunity to fully
violation of certain provisions of the act. RCW 21.20.430(1). A "seller" develop the record surrounding the sale of securities to FutureSelect
includes any party whose acts were a "substantial contributive factor" so that the trail court can properly consider the Restatement § 148
to the sale. Haberman, 109 Wash.2d at 131, 744 P.2d 1032. This is factors as they apply to the various defendants and determine
meant to be an expansive definition. Even so, we do require plaintiffs whether Ernst & Young's acts were a substantial contributing factor to
to establish "`something more'" in addition to the provision of routine FutureSelect's decision to continue investing in the Rye Funds. We
professional services. Hines v. Data Line Sys., Inc., 114 Wn.2d 127, affirm the Court of Appeals and remand to the trial court for further
149-50, 787 P.2d 8 (1990). Because it is possible that FutureSelect can proceedings consistent with this opinion.
establish the requisite "something more," dismissal on the pleadings
was inappropriate.

¶ 33 In Hines, we found that there was no evidence to indicate that

the attorneys that were being sued under the WSSA had any personal
contact with any of the investors or were in any way involved in the
solicitation process. Id. at 149, 787 P.2d 8. There, we found "[t]he
advice given by Perkins Coie to Data Line was not a catalyst in the sales
transaction between Data Line and the investors." Id. at 150, 787 P.2d
8. This meant that Perkins Coie could not be held liable as a seller. Id.

¶ 34 The situation here is different. Among other things, Hines was

resolved on summary judgment, not on a CR 12(b)(6) motion. Id. at
148, 787 P.2d 8. Because the question of whether someone was a
substantial contributive factor is "necessarily a question of
fact," Haberman, 109 Wash.2d at 132, 744 P.2d 1032, it is not easily
resolved on the pleadings as long as the complaint contains sufficient
allegations.

¶ 35 Here, FutureSelect has met this requirement. Its complaint

alleges that FutureSelect "would not have invested in the Rye Funds if
the funds were not audited" by Ernst & Young. Clerk's Papers at 37.
Moreover, FutureSelect has also alleged that Ernst & Young "knew
that its audits would be used by Tremont to solicit investors [and] also
knew and intended that current investors would rely on the audits
when deciding to maintain and increase their investments in the Rye
Funds." Id. Finally, Ernst & Young asked FutureSelect to verify its
investment in the Rye Funds and addressed its audits directly to the
partners of the Rye Funds, which included FutureSelect. Id. at 23.

¶ 36 FutureSelect is entitled to an opportunity to prove what it

alleged. We reverse the trial court's CR 12(b)(6) dismissal.