IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________

No. 01-40012

_____________________

JORGE LUIS MACHUCA GONZALEZ; MARTHA PATRICIA LOPEZ

GUERRERO, Individually And As Heirs And Representatives

Of The Estate Of Luis Pablo Machuca Lopez, Deceased,

 Plaintiffs - Appellants,

versus

CHRYSLER CORPORATION, Etc.; ET AL.,

 Defendants,

CHRYSLER CORPORATION, also known as Chrysler Motors

Corporation; TRW, INC.; TRW VEHICLE SAFETY SYSTEMS, INC.;

MORTON INTERNATIONAL, INC.,

 Defendants - Appellees.

Appeal from the United States District Court

for the Southern District of Texas

August 20, 2002

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this forum non conveniens case, we first consider whether

the cap imposed by Mexican law on the recovery of tort damages

renders Mexico an inadequate forum for resolving a tort suit by a

Mexican citizen against an American manufacturer and an American

designer of an air bag. Holding that Mexico –- despite its cap on

damages –- represents an adequate alternative forum, we next
1In this opinion, we refer to the plaintiffs collectively as

Gonzalez.

2

consider whether the district court committed reversible error when

it concluded that the private and public interest factors so

strongly pointed to Mexico that Mexico, instead of Texas, was the

appropriate forum in which to try this case. Finding no reversible

error, we affirm the district court’s judgment dismissing this case

on the ground of forum non conveniens. 

I

In 1995, while in Houston, the plaintiff, Jorge Luis Machuca

Gonzalez (“Gonzalez”)1 saw several magazine and television

advertisements for the Chrysler LHS. The advertisements sparked

his interest. So, Gonzalez decided to visit a couple of Houston

car dealerships. Convinced by these visits that the Chrysler LHS

was a high quality and safe car, Gonzalez purchased a Chrysler LHS

upon returning to Mexico. 

On May 21, 1996, the wife of the plaintiff was involved in a

collision with another moving vehicle while driving the Chrysler

LHS in Atizapan de Zaragoza, Mexico. The accident triggered the

passenger-side air bag. The force of the air bag’s deployment

instantaneously killed Gonzalez’s three-year-old son, Pablo.

Seeking redress, Gonzalez brought suit in Texas district court

against (1) Chrysler, as the manufacturer of the automobile; (2)

TRW, Inc. and TRW Vehicle Safety Systems, Inc., as the designers of
2In this opinion, we refer to the defendants collectively as

Chrysler.

3

the front sensor for the air bag; and (3) Morton International,

Inc., as designer of the air bag module. Gonzalez asserted claims

based on products liability, negligence, gross negligence, and

breach of warranty. As noted, Gonzalez chose to file his suit in

Texas. Texas, however, has a tenuous connection to the underlying

dispute. Neither the car nor the air bag module was designed or

manufactured in Texas. The accident took place in Mexico, involved

Mexican citizens, and only Mexican citizens witnessed the accident.

Moreover, Gonzalez purchased the Chrysler LHS in Mexico (although

he shopped for the car in Houston, Texas). Because of these

factors, the district court granted the defendants’ identical

motions for dismissal on the ground of forum non conveniens.2

Gonzalez now appeals. 

II 

A

The primary question we address today involves the threshold

inquiry in the forum non conveniens analysis: Whether the

limitation imposed by Mexican law on the award of damages renders

Mexico an inadequate alternative forum for resolving a tort suit

brought by a Mexican citizen against a United States manufacturer.

We should note at the outset that we may reverse the grant or

denial of a motion to dismiss on the ground of forum non conveniens
4

only “where there has been a clear abuse of discretion.” Baumgart

v. Fairchild Aircraft Corp., 981 F.2d 824, 835 (5th Cir. 1993). 

The forum non conveniens inquiry consists of four

considerations. First, the district court must assess whether an

alternative forum is available. See Alpine View Co. Ltd. v. Atlas

Copco AB, 205 F.3d 208, 221 (5th Cir. 2000). An alternative forum

is available if “the entire case and all parties can come within

the jurisdiction of that forum.” In re Air Crash Disaster Near New

Orleans, La. on July 9, 1982, 821 F.2d 1147, 1165 (5th Cir. 1987)

(en banc), vacated on other grounds sub nom., Pan Am. World

Airways, Inc. v. Lopez, 490 U.S. 1032 (1989). Second, the district

court must decide if the alternative forum is adequate. See Alpine

View, 205 F.3d at 221. An alternative forum is adequate if “the

parties will not be deprived of all remedies or treated unfairly,

even though they may not enjoy the same benefits as they might

receive in an American court.” In re Air Crash, 821 F.2d at 1165

(internal citation omitted). 

If the district court decides that an alternative forum is

both available and adequate, it next must weigh various private

interest factors. See Baumgart, 981 F.2d at 835-36. If

consideration of these private interest factors counsels against

dismissal, the district court moves to the fourth consideration in

the analysis. At this stage, the district court must weigh

numerous public interest factors. If these factors weigh in the
3It is undisputed that Mexico is an amenable forum because the

defendants have agreed to submit to the jurisdiction of the Mexican

courts.

5

moving party’s favor, the district court may dismiss the case. Id.

at 837.

B

1

The heart of this appeal is whether the alternative forum,

Mexico, is adequate.3

The jurisprudential root of the adequacy requirement is the

Supreme Court’s decision in Piper Aircraft Co. v. Reyno, 454 U.S.

235 (1981). The dispute in Piper Aircraft arose after several

Scottish citizens were killed in a plane crash in Scotland. Id.

at 238. A representative for the decedents filed a wrongful death

suit against two American aircraft manufacturers. Id. at 240. The

Court noted that the plaintiff filed suit in the United States

because “[U.S.] laws regarding liability, capacity to sue, and

damages are more favorable to her position than are those of

Scotland.” Id. The Court further noted that “Scottish law does

not recognize strict liability in tort.” Id. This fact, however,

did not deter the Court from reversing the Third Circuit. In so

doing, the Court held that “[a]lthough the relatives of the

decedent may not be able to rely on a strict liability theory, and

although their potential damage award may be smaller, there is no

danger that they will be deprived of any remedy or treated unfairly
6

[in Scotland].” Id. at 255. Thus, the Court held that Scotland

provided an adequate alternative forum for resolving the dispute,

even though its forum provided a significantly lesser remedy. In

a footnote, however, Justice Marshall observed that on rare

occasions this may not be true:

At the outset of any forum non conveniens inquiry, the

court must determine whether there exists an alternative

forum. Ordinarily, this requirement will be satisfied

when the defendant is "amenable to process" in the other

jurisdiction. In rare circumstances, however, where the

remedy offered by the other forum is clearly

unsatisfactory, the other forum may not be an adequate

alternative, and the initial requirement may not be

satisfied. Thus, for example, dismissal would not be

appropriate where the alternative forum does not permit

litigation of the subject matter of the dispute. 

Id. at 255 n.22 (emphasis added)(internal citation omitted).

Citing the language from this footnote, Gonzalez contends that

a Mexican forum would provide a clearly unsatisfactory remedy

because (1) Mexican tort law does not provide for a strict

liability theory of recovery for the manufacture or design of an

unreasonably dangerous product and (2) Mexican law caps the maximum

award for the loss of a child’s life at approximately $2,500 (730

days’ worth of wages at the Mexican minimum wage rate). Thus,

according to Gonzalez, Mexico provides an inadequate alternative

forum for this dispute.
4Although Mexico apparently recognizes strict liability

against the defendant users of a dangerous product, it does not

recognize strict liability against the manufacturer or designer of

a dangerous product. See art. 19 C.C.D.F; Symposium, Part-Five: A

Serious Accident Occurs in the Mexican Plant: Problems of Corporate

and Product Liability, 4 U.S.-MEX. L.J. 125, 128 (1996) (“[T]here

is no cause of action under Mexican law for an injured party to sue

a remote manufacturer or vendor, unless the plaintiff is in privity

of contract with the defendant or can prove the manufacturer’s or

the vendor’s negligence. Product liability is a distinctly United

States concept. . . . Mexican law does have a doctrine of strict

liability, but not of product liability. Under Mexico's strict

liability, the defendant is normally the user (whether owner, agent

or bailee) of an inherently dangerous mechanism, instrument,

apparatus or substance who, with his use, injures the plaintiff”)

(citation omitted). Similarly, Scotland at the time of the

pertinent events in Piper Aircraft did not have strict liability

for the design or manufacture of dangerous products. See DAVID M.

WALKER, THE LAW OF DELICT IN SCOTLAND, 614-615 (2d ed. 1981) (“Products

liability came to Scotland with the Consumer Protection Act of

1987, but this was more than a decade after the operative facts in

Piper.”). 

7

2

(a)

Gonzalez’s first contention may be quickly dismissed based on

the explicit principle stated in Piper Aircraft. As noted, there

the Supreme Court held that Scotland’s failure to recognize strict

liability did not render Scotland an inadequate alternative forum.

Id. at 255. There is no basis to distinguish the absence of a

strict products liability cause of action under Mexican law from

that of Scotland.4 Piper Aircraft therefore controls.

Accordingly, we hold that the failure of Mexican law to allow for

strict liability on the facts of this case does not render Mexico

an inadequate forum.
5Mexico (or, more correctly, the Mexican United States) is a

federal republic. To be precise, the limitation on tort damages at

issue in this case was enacted by the State of Mexico, one of the

member states of the Mexican United States. 

8

(b)

Gonzalez’s second contention –- that the damage cap renders

the remedy available in a Mexican forum “clearly unsatisfactory” –-

is slightly more problematic. Underlying this contention are two

distinct arguments: First, Gonzalez argues that if he brings suit

in Mexico, the cap on damages will entitle him to a de minimis

recovery only -- a clearly unsatisfactory award for the loss of a

child. Second, Gonzalez argues that because of the damage cap, the

cost of litigating this case in Mexico will exceed the potential

recovery. As a consequence, the lawsuit will never be brought in

Mexico. Stated differently, the lawsuit is not economically viable

in Mexico. It follows, therefore, that Mexico offers no forum

(much less an adequate forum) through which Gonzalez can (or will)

seek redress. We address each argument in turn. 

(i)

In addressing Gonzalez’s first argument, we start from basic

principles of comity. Mexico, as a sovereign nation,5 has made a

deliberate choice in providing a specific remedy for this tort

cause of action. In making this policy choice, the Mexican

government has resolved a trade-off among the competing objectives

and costs of tort law, involving interests of victims, of
6See 1 JORGE A. VARGAS, MEXICAN LAW: A TREATISE FOR LEGAL PRACTITIONERS

AND INTERNATIONAL INVESTORS §§ 1.31-32 (1998) (describing how law is

made in Mexico).

7As one legal scholar so aptly noted: “we should have a little

humility. . . . It is past time for us to get it through our heads

that it is not everyone but us who is out of step.” William L.

Reynolds, The Proper Forum for a Suit: Transnational Forum Non

Conveniens and Counter-Suit Injunctions in the Federal Courts, 70

TEX. L. REV. 1663, 1708-09 (1992) (internal quotation marks

omitted).

9

consumers, of manufacturers, and of various other economic and

cultural values. In resolving this trade-off, the Mexican people,

through their duly-elected lawmakers, have decided to limit tort

damages with respect to a child’s death.

6 It would be

inappropriate –- even patronizing -- for us to denounce this

legitimate policy choice by holding that Mexico provides an

inadequate forum for Mexican tort victims.7 In another forum non

conveniens case, the District Court for the Southern District of

New York made this same point observing (perhaps in a hyperbolic

choice of words) that “to retain the litigation in this forum, as

plaintiffs request, would be yet another example of imperialism,

another situation in which an established sovereign inflicted its

rules, its standards and values on a developing nation.” In re

Union Carbide Corp. Gas Plant Disaster at Bhopal, India in

December, 1984, 634 F.Supp. 842, 867 (S.D.N.Y. 1986), aff’d as

modified, 809 F.2d 195 (2d Cir. 1987). In short, we see no warrant

for us, a United States court, to replace the policy preference of
8As a point that might fall in the technical category, the

economic viability of a lawsuit may be more appropriate for

consideration as a private interest factor, after the court has

made the threshold determination that the alternative forum is both

amenable and adequate. This view would seem to accord with the

Eighth Circuit’s decision in Lehman v. Humphrey Cayman, Ltd., 713

F.2d 339 (8th Cir. 1983). Lehman involved an Iowa plaintiff, suing

in Iowa district court for the death of her husband, an Iowa

citizen, in the Cayman Islands. In reversing a dismissal based on

forum non conveniens, the Lehman court evaluated the private and

public interest factors for and against dismissal. As one of the

factors, the Lehman court considered the economic viability of the

suit in the Cayman Islands, holding that “[t]he court must be alert

to the realities of the plaintiff’s position, financial and

otherwise, and his or her ability as a practical matter to bring

suit in the alternative forum.” Id. at 346. The Lehman court

considered the plaintiff’s willingness and ability to bring the

lawsuit in the alternative forum in the context of all other

private and public interest factors. See also Kryvicky v.

Scandinavian Airlines Sys., 807 F.2d 514, 517 (6th Cir. 1986)

(same).

We neither gainsay nor approve the holding of Lehman. We only

note that it has no fit to the facts in this case where there are

no other private or public interest factors pointing toward Texas

10

the Mexican government with our own view of what is a good policy

for the citizens of Mexico.

Based on the considerations mentioned above, we hold that the

district court did not err when it found that the cap on damages

did not render the remedy available in the Mexican forum clearly

unsatisfactory.

(ii)

We now turn our attention to Gonzalez’s “economic viability”

argument –- that is, because there is no economic incentive to file

suit in the alternative forum, there is effectively no alternative

forum.8 
and away from Mexico as the proper forum to try this case. 

In passing, it should be noted that to the extent that

economic viability is undermined by the cost of securing an

attorney, our circuit has held that “the fact that contingent fees

are legally permissible in the United States but legally

impermissible in England is not a factor that controls or even

significantly influences the forum non conveniens determination.”

See Coakes v. Arabian Am. Oil Co., 831 F.2d 572, 575 (5th Cir.

1987).

9This fact is not unique to this lawsuit. A survey found that

between 1945 and 1985, of 85 transnational cases dismissed on the

ground of forum non conveniens, only four percent ever reached

trial in a foreign court. See David Robertson, Forum Non

Conveniens in America and England: “A Rather Fantastic Fiction”,

103 L. Q. REV. 398, 418-19 (1987).

11

The practical and economic realities lying at the base of this

dispute are clear. At oral argument, the parties agreed that this

case would never be filed in Mexico. In short, a dismissal on the

ground of forum non conveniens will determine the outcome of this

litigation in Chrysler’s favor.9 We nevertheless are unwilling to

hold as a legal principle that Mexico offers an inadequate forum

simply because it does not make economic sense for Gonzalez to file

this lawsuit in Mexico. Our reluctance arises out of two practical

considerations.

First, the plaintiff’s willingness to maintain suit in the

alternative (foreign) forum will usually depend on, inter alia, (1)

whether the plaintiff’s particular injuries are compensable (and to

what extent) in that forum; (2) not whether the forum recognizes

some cause of action among those applicable to the plaintiff’s

case, but whether it recognizes his most provable and compensable
12

action; (3) similarly, whether the alternative forum recognizes

defenses that might bar or diminish recovery; and (4) the

litigation costs (i.e., the number of experts, the amount of

discovery, geographic distances, attorney’s fees, etc.) associated

with bringing that particular case to trial. These factors will

vary from plaintiff to plaintiff, from case to case. Thus, the

forum of a foreign country might be deemed inadequate in one case

but not another, even though the only difference between the two

cases might be the cost of litigation or the recovery for the

plaintiff’s particular type of injuries. In sum, we find

troublesome and lacking in guiding principle the fact that the

adequacy determination could hinge on constantly varying and

arbitrary differences underlying the “economic viability” of a

lawsuit.

Second, if we allow the economic viability of a lawsuit to

decide the adequacy of an alternative forum, we are further forced

to engage in a rudderless exercise of line drawing with respect to

a cap on damages: At what point does a cap on damages transform a

forum from adequate to inadequate? Is it, as here, $2,500? Is it

$50,000? Or is it $100,000? Any recovery cap may, in a given

case, make the lawsuit economically unviable. We therefore hold

that the adequacy inquiry under Piper Aircraft does not include an

evaluation of whether it makes economic sense for Gonzalez to file

this lawsuit in Mexico.
10As noted, the parties concede that Mexico represents an

amenable forum.

13

C

Having concluded that Mexico provides an adequate forum,10 we

now consider whether the private and public interest factors

nonetheless weigh in favor of maintaining this suit in Texas. As

noted, the district court concluded that the public and the private

interest factors weighed in favor of Mexico and dismissed the case

on the ground of forum non conveniens. Our review of this

conclusion is restricted to abuse of discretion. See Alpine View,

205 F.3d at 220. 

The district court found that almost all of the private and

public interest factors pointed away from Texas and toward Mexico

as the appropriate forum. It is clear to us that this finding does

not represent an abuse of discretion. After all, the tort victim

was a Mexican citizen, the driver of the Chrysler LHS (Gonzalez’s

wife) is a Mexican citizen, and the plaintiff is a Mexican citizen.

The accident took place in Mexico. Gonzalez purchased the car in

Mexico. Neither the car nor the air bag was designed or

manufactured in Texas. In short, there are no public or private

interest factors that would suggest that Texas is the appropriate

forum for the trial of this case.

III
14

For the foregoing reasons, the district court’s dismissal of

this case on the ground of forum non conveniens is

AFFIRMED.