Because of variations in the competence and fairness of some judges and juries, some states (or counties within a state) are regarded as “better” than others for certain kinds of cases. When a plaintiff manipulates the system in order to file a lawsuit in one of these preferred venues—typically by adding parties to the case who have little or nothing to do with the matter in dispute—it is called venue shopping.
1995, 2003: In-State Venue Shopping
Texas law has specific venue provisions applicable to the many different kinds of cases that may be filed in our courts. In some kinds (like a personal injury case, for example), the applicable statute provides that the case may be filed in one of several counties, and the plaintiff is entitled to choose among those counties when filing his lawsuit.
Some counties in Texas have historically been regarded as favorable to plaintiffs in personal injury and wrongful death cases. In fact, some Texas counties have such a history of unabashed favoritism toward plaintiffs that they have consistently been listed as “litigation hellholes” by the American Tort Reform Association.
While it is legitimate for a plaintiff to choose among the alternative counties of proper venue, it is not legitimate for a plaintiff attorney to manufacture venue by naming an innocent person as an additional defendant in a lawsuit. Since its founding in 1994, TLR has worked to end this kind of manipulation of Texas’ venue laws.
In its 1995 session, in the face of rampant venue shopping, the Texas Legislature passed a significant venue reform bill, Senate Bill 32. Before 1995, Texas’ generally applicable venue law allowed a business entity (corporation, association or partnership) to be sued in any county in Texas in which the entity had an agent, which effectively meant any county in which the entity had an employee. This provision encouraged plaintiffs to add a business entity defendant whenever feasible if the entity had an agent in a preferred venue. The 1995 venue bill repealed this regularly abused venue law and substituted a provision that a business entity could be sued in the county of its principal office, not anywhere it had an agent.
SB 32 also included a provision requiring that in multi-plaintiff cases, each plaintiff must independently establish venue in the county in which the lawsuit was filed, instead of multiple plaintiffs grouping together to take advantage of a favorable venue otherwise available to only one of them. Additionally, SB 32 provided that a trial court could transfer a case to another county of proper venue if maintaining the case in the original county would cause an injustice and another county would be more convenient.
Because of a judicially created loophole around the 1995 multi-plaintiff venue requirement, the Legislature passed House Bill 4 in 2003. The bill created a right to immediately appeal a trial court’s decision allowing multiple plaintiffs to join a case in a single venue when the right of each plaintiff to litigate in that venue is contested.
2007: Venue in Dredging Litigation
Texas is an international hub for trade activity. However, all of Texas’ ports are naturally shallow and need to be dredged to ensure large cargo ships can access them—which is critical to Texas’ import and export industries. In the early part of the 21st century, an unusual number of personal injury lawsuits were filed against the companies that dredge our ports.
The lawsuits were being filed in four south Texas counties, even though the alleged injuries did not occur in those counties. The unusual number of lawsuits coupled with a few extremely high jury verdicts had caused dredgers’ insurance premiums in Texas to skyrocket. Dredging companies were beginning to avoid Texas, preferring to work in ports along other parts of the Gulf Coast and along the Atlantic and Pacific oceans.
A loophole in the 1995 venue statute allowed these lawsuits—all of which were pursued under federal law (the Jones Act)—to be pursued in the county in which the plaintiff resided. The lawsuits were being pursued by a single Texas attorney on behalf of plaintiffs who were residents of the four chosen south Texas counties because certain judges in those counties were extremely favorable to the plaintiffs’ attorney.
House Bill 1602 of 2007 removed the Jones Act exception from the generally applicable venue statute and enacted a new statute allowing maritime lawsuits to be filed in the county in which the defendant had its headquarters or where the injury occurred. Merely changing the venue available for these lawsuits immediately ended the apparent recruitment of clients that had led to the litigation explosion in the first place.
1997, 2003, 2005, 2015: Interstate Forum Shopping
In some instances, a party who has been involved in an accident occurring in another state or nation wants to access Texas courts, particularly those courts in Texas’ problematic jurisdictions. In 1990, in Dow Chemical Co. v Alfaro, the Texas Supreme Court held that the Texas Legislature had statutorily abolished a court-made doctrine called forum non conveniens in personal injury and wrongful death cases. The forum non conveniens doctrine was established by the U.S. Supreme Court and provides that a court may dismiss a case, even if the plaintiff has established jurisdiction and venue, if the venue chosen by the plaintiffs is substantially inconvenient to the defendant and a more convenient venue is available. The result of the Alfaro decision was that Texas state courts could not dismiss a case that had little or nothing to do with Texas or a Texas resident. Literally, anyone in the world could access Texas’ courts. This ruling is one reason 60 Minutes called Texas the “lawsuit capital of the world” at that time.
In 1993, the Texas Legislature passed a forum non conveniens statute, effectively nullifying the Texas Supreme Court’s Alfaro decision. The new law provided that, with respect to a person who was not a legal resident of the U.S., a trial court could dismiss a case upon a finding that the case would be more properly heard in a forum outside Texas. In regard to a case brought by a resident of another state, the test for dismissal was much more complicated. The trial court could dismiss the case if a forum outside Texas could exercise jurisdiction over the case, offered a remedy for the causes of action stated by the plaintiff, would provide a place for trial that was fair, reasonable and convenient to the parties, and if retaining the case in Texas would be a substantial injustice to the party seeking to move the case. Among other restrictions, the defendant also had to agree to be sued in the other jurisdiction.
The new statute included numerous exceptions that substantially limited its usefulness. For example, it did not apply if any plaintiff was a resident of Texas, if any part of the act or event giving rise to the plaintiff’s injury occurred in Texas, if the claim was under the Federal Employers Liability Act, if the plaintiff alleged his injury was caused by exposure to asbestos or if the action was related to air transportation.
In 1997 in Senate Bill 220, the Texas Legislature amended the forum non conveniens statute to:
- apply the forum non conveniens doctrine to individual claims, not entire actions;
- reduce the multiple elements that previously had to be satisfied before a claim could be dismissed under the forum non conveniens statute to a narrower six-element test;
- provide that defendants did not have to consent to personal jurisdiction in the forum to which the case might be transferred; and
- eliminate exceptions prohibiting the transfer of cases brought under the Federal Employers Liability Act, arising from an airplane crash or arising from exposure to asbestos (with many conditions).
Senate Bill 220 also contained a provision amending one of Texas’ statutes of limitations to require an out of state plaintiff to rely on his home state’s limitations law. In some instances, Texas has a longer period in which a lawsuit can be filed than other states. As a result, a plaintiff from another state who failed to file a lawsuit in time under that state’s law would manufacture a reason to file the lawsuit in Texas. A provision in Senate Bill 220 requires that a lawsuit to recover damages for an injury or death brought in a Texas court by or on behalf of a non-resident of Texas must be brought within the applicable period of limitations of the state in which the injury-causing event occurred.
In House Bill 4 of 2003, the statute was amended again. The 1997 amendment had created a six-part test that trial courts had to consider in determining whether to dismiss a case under the forum non conveniens doctrine. The 2003 amendment changed the standard to provide that if a trial court found that in the interest of justice and convenience a claim or action would be more properly heard in a venue outside Texas, the court was required to decline to exercise jurisdiction so the case could be pursued in the other venue. The elements of the six-part test established in 1997 could be considered in determining if the case should be dismissed, but the six-part test no longer controlled the decision.
In 2005 in House Bill 755, the Legislature changed the word “may” to “shall” in part of the statute, which resulted in application of 1997’s six-part test becoming mandatory again. At the same time, the Legislature deleted the part of the act providing that a case could not be dismissed if any part of the acts or omissions giving rise to the plaintiff’s claims occurred in Texas.
Finally, in 2015, the statute was amended again by House Bill 1692. Since its original enactment in 1993, the statutory forum non conveniens doctrine had prohibited dismissal of a case if any plaintiff was a legal resident of Texas. It had become somewhat commonplace that, after a fatal accident in a foreign nation, a person who was distantly related to the person who died would file a probate proceeding in a Texas court to administer the deceased person’s estate, and then file a wrongful death lawsuit in Texas as part of that probate proceeding. The 2015 amendment to the forum non conveniens statute changed the law to make clear that being the administrator of a deceased person’s estate is not sufficient on its own to establish venue in Texas and avoid the transfer of the case to a more convenient forum.
See also Lawsuit Procedures, Personal Injury
