Jill Nesladek, as Trustee for Heirs and Next of Kin of Jeremy J. Nesladek, Decedent v. Ford Motor Company

3El.l(a). § U.S.S.G. Where the acceptance responsibili- offense.” demonstrated 16, greater ty original offense level is than because he continued to contend that “he gets an additional one-level reduc- committed the offense ... defendant for the rea- somebody qualifies [that] for the initial son tion he two-level else tricked him into reduction, doing disagree it.” appellant’s and has assisted authorities We with the investigation prosecution interpretation finding of his own mis- as a conclusion by timely providing judge of law. complete conduct infor- The district based his denial of government, timely particular the reduction mation to or has on the facts of the appellant’s appellant’s notified authorities of his intention to enter a case and the continued рlea guilty. U.S.S.G. 3E1.1. denial of the essential element of intent. 3E1.1, correctly applied § The court and its The district court determined that Newson decision is not clear error. had admitted commission of acts that, charged; by attempting but to with- IV. CONCLUSION guilty plea, draw his Newson had failed to the essential admit element of intent. The stated, For the reasons judg- we affirm the court, therefore, concluded Newson had sentencing ment of the court. clearly acceptance demonstrated of re- sponsibility. argues

Newson that he was entitled to a acceptance three-level reduction for responsibility because he admitted his role charged

the offense stipulated to all of government, the facts submitted re gardless subsequent attempt of his to with NESLADEK, Jill as Trustee for Heirs plea rely draw the on the defense of and Next Kin J. Nes entrapment. Newson further submits that ladek, Decedent, Appellant, the district court’s denial of a reduction law, this case question was based on a specifically proposition that a defendant COMPANY, Appellee. FORD MOTOR entrapment who asserts is not entitled to an No. 94-1885. reduction, and, acceptance-of-responsibility therefore, argues that we should conduct a United Appeals, States Court of de novo review of this issue. Eighth Circuit. grant Whether to a reduction for Submitted Oct. 1994. acceptance responsibility is for the trial Decided Jan. judge to decide. “[T]he district court is unique position to evaluate a defendant’s ac

ceptance responsibility.” United States Furlow, (8th Cir.1992) (en 980 F.2d — banc), denied, U.S.-, cert. 124 L.Ed.2d 261 “[E]ven

guilty plea guаrantee does not a reduction.” Clair, (8th United States v. 934 F.2d

Cir.1991). We review a district court’s find ings of fact with respect to a denial of a

motion for an acceptance-of-responsibility re

duction clearly under the erroneous stan Miller, dard. United States v. 951 F.2d (8th Cir.1991). In this the district court made a specific finding appellant of fact that the had MN, Herr, argued Minneapolis, F.

David McDonald, (William and Springfield, MO H. brief) NE, Omaha, on for Kruger, Eric W. appellant. MN, Bowbeer, argued Minneapolis,

Hildy Laird, City, MO and (Douglas Kansas S. MI, Dearborn, brief), on O’Reilly, J. Michael appellee. LAY, BOWMAN, Judge, Circuit Before Judge, and MORRIS Circuit Senior ARNOLD, Judge. Circuit SHEPPARD BOWMAN, Judge. Circuit Nesladek, for the heirs Jill as trustee Jeremy, appeals the of kin of her son next granting Ford District Court1 decision summary judg- Company’s motion Motor complaint prej- dismissing her ment We affirm. udice.

I. Point, Ne- April near West

On braska, start- Jeremy’s father Ken Nesladek truck, pickup preparing family’s Ford ed the Jeremy’s Jeremy and three-year-old to take day care. With Dustin younger brother truck, realized Nesladek Ken Dustin toy wagon were behind Jeremy his wagon to move the ‍​‌​‌​​​​​​‌​​​‌​​​​‌‌​​​‌​​‌​​​‌‌‌‌‌‌​‌​​‌​‌‌‌​‌‍left the truck and vehicle proceeded to do he his son. As and retrieve rolled so, moved backward the truck him. Jeremy, severely injuring over years later injuries two from his about died 20, 1992, family farm February Nebraska. death, Nesladeks Jeremy’s

After brought Nesladek to Minnesota. Jill moved state in Minnesota wrongful death suit to federal case removed the court. Ford judgment, ar- summary and moved court barred that Nesladek’s claim guing appli- ten-year Nebraska’s Dis- liability actions. products cable Judge of Minnesota. for the District Kyle, District United States H. 1. The Honorable Richard granted trict Court Ford’s motion and Nesla- Tire & Rubber appeals, (Minn.1988) (en F.Supp. dek banc), We review denied, cert. summary

de novo the to enter judg- decision 106 L.Ed.2d 610 ment. being question There no this case presents laws, a true conflict of see Lommen II. Forks, v. City East Grand 522 N.W.2d agree All that this is a conflict of laws case. 149 (Minn.Ct.App.1994), proceed we to law, Under Nebraska which the District the step analysis. next of our applied dismissing claim, “any the action,” product liability excep with some III. here, tions not relevant “shall be commenced sitting Federal diversity courts years ten within after the date when the apply the forum state’s conflict of laws rules. product allegedly which personal caused the Klaxon Co. Stentor Mfg. Elec. death, 313 injury, damage or was first sold or 487, 496, 1020, 1021-22, U.S. leased for consumption.” use or Neb.Rev. (1941). L.Ed. 1477 law, 25-224(2) Under (1989). Minnesota § Stat. The truck at issue the first issue that must be vehicles, resolved before composite was a of two combined in we choose between by Nebraska Harvey 1989 Ken Nesladek and Kreikem Minnesota law is whether the law at is a issue eirer: 1976 Ford model F-250 cab on a procedural. substantive or If pro the law is Thus, 1973 Ford model F-350 chassis. un cedural, apply then we law law, the of the forum der Nebraska Nesladek cannot maintain If, hand, state. on the substantive, other it is precluded by as it was the statute the choice of law (ten continues to the years in 1986 after the 1976 step. next sold) City Gate Fed. Sav. & model was first Loan at the latest. Because O’Connor, Ass’n v. 410 N.W.2d years ten elapsed before the accident oc (Minn.Ct.App.1987). curred, Minnesota law a controls cause of action never accrued. substantive/procedural determination. approach Minnesota’s to the issue of liabili Id. ty injury, death, damage allegedly caused aged products “ is its life” “useful In Minnesota long has ‘[i]t been rec statute, statute. Under that “it is a defense ognized that law is part substantive [products to a liability] against claim a de creates, defines, law which regulates signer, manufacturer, distributor or seller of rights, opposed “adjective to or remedial” product thereof, part or a injury that the law, prescribes which [sic] method enforc following sustained expiration of the ing rights or obtaining redress for their ordinary useful ” product.” life Minn. Zaretsky invasion.’ v. Molecular Biosys § (1992). Stat. 604.03 subd. “The useful tems, Inc., (Minn.Ct. product life of a period ... during App.1990) (quoting Kavli, Meagher v. which with safety product reasonable Minn. (1958)). 879-80 should be useful § to the user.” Id. 604.03 repose, Nebraska’s statute of at least as it subd. 2. considers, The fact-finder inter applies to cases like this one which the alia, tear, wear and subsequent industry de injury-causing accident does not occur until velopments, use, conditions of the manufac ten-year after the repose period expired, life, turer’s stated useful and user modifica and Minnesota’s useful life statute are rela tion of product. Id. Minnesota’s useful tively easy classify test, under this and we life statute necessarily would not disposi- be hold that are substantive law.2 tive of claim; rather, Nesladek’s it be would jury for the whether the law, decide truck’s Under “statutes of useful life expired had before the accident remedy” limitations relate to and therefore question occurred. See v. Goodyear procedural, Hodder period so that the of time 2. Most courts that have been faced with the Liability Law American of Products 3d 47:55 question have found statutes of to be at 89 & n. 22 and cited cases therein substantive law for purposes. conflict of law See procedural pur to be may bring Minnesota party a which accrual within after extending filing deadlines because if poses law by Minnesota is controlled action [plaintiffs] right basic change States “it does United in Minnesota. token, By Processing negligence”). same Biba sue Corp. v. Leasing Info. (Minn.Ct. regulates the life statute Servs., Inc., useful products the other in a repose, rights of a defendant A statute of App.1989). is, suit, right present accrual of

hand, directly impacts on the it creates the It life de in the first instance.3 defense—-the useful action substantive causе statutory independent “Expiration of useful bar a suit. operates as a such fense —to inaction) (or litigants— weighed and “a factor to be actions life is a defense” iden litigants can be even fault jury determining before those often at 550 Zaretsky, 464 N.W.2d the fault of the user.” tified. manufacturer proce interest statute (finding prejudgment Hodder, a It is no more 832. N.W.2d alia, the because, it to “applies type inter dural bar —a statute of limitations procedural Al litigants”). parties as relationship of the statute of is the Nebraska defense —than of repose does of statute though the Nebraska repose.4 substantive it is no less rights, create not of its characterization Nebraska’s potential disability imposes upon a it because statute, because we dispositive not own while Or, way, it cre another viewed claimants. law, is to be consid applying Minnesota defen potential products-liability in the ates by analysis used under the choice-of-law ered under the immunity from suit right to dant a Myers v. Govern See Minnesota courts. in the out statute. set circumstances Co., 225 Employees Ins. N.W.2d ment Neb., & N.A. v. W.R. Graze Bank Norwest (Minn.1974) from (considering decisions Cir.1992) (8th Conn., F.2d Co. — deciding wheth when state Louisiana courts law). of statute (interpreting Nebraska proce or was substantive a Louisiana law er It rights,” not remedies. “regulates repose Inc., 610 dural); Spiegel, also Mason see enforcing the of a “method not dictate does (D.Minn.1985) (noting n. 2 F.Supp. their inva obtaining redress rights or “will of laws case Minnesota in a conflict that (quoting at 548 Zaretsky, 464 N.W.2d sion.” by partially,” a state’s guided, least 880). Rather, be its Meagher, 88 N.W.2d law substantive of its own as characterization product first is years after a effect is ten courts have Nebraska state procedural). enforce, re or rights to can be no sold there case in a squarely to hold yet injury to subsequent related any gardless of conflicts 25-224(2) substantive Dill, 442 Neb.Rev.Stat. Stern product’s use. Cf. Nevertheless, law. procedural (Minn.1989) than (finding a rather 322, 324 N.W.2d limitations a statute of repose is different from of engaged argument, counsel the Court 3. At oral statute equitable regard tort limitations possibility because a concerning colloquy a death, or repose, injury, such as tolling begin for reasons run until the a not to statute does questioned whether action ac- infancy The Court damage or fraud. until cause occurs—or so, tolled, and, hand, repose if repose can be a statute a the other statute crues. On We do law. still can be substantive accruing whether it prevents of action from the cause they of no questions because decide those that, may accrues place. be if action It first at issue accident consequence this case. The ten-year products re- within Nebraska’s period, ten-year repose here occurred outside long brought barring outside of a suit pose period, the accru- death, repose barred after the statute bar, procedural years effect a ten is in injury, based on cause of action al of tolling. subject to would be by The elements damage the truck. caused here, possibility and that case But such is not the ten as toll the met so could nеver be fraud statute of change our decision that does reliance on be years could no because there case, is applied to the facts repose, as might Nesladek cause fraudulent statements law. substantive by time of rights because, sleep on her — Further, accident, rights. if had no such she the Jeremy Indeed, suggest that does not even Nesladek brought own his had survived procedural a life statute is the Minnesota useful infancy tolling his no again be there would it is appears be conceded law. It thus long past when ten-year period was because choice- of Minnesota's purposes fact, substantive it well accident occurred—in analysis. of-law A statute even born. expired before the comments that courts rules, have made as re- choice-of-law determine whether Ne- gards the statute leave little doubt about how braska or applies. Minnesota law question. would rule faced example, Supreme For the Nebraska Court IV. “immunity has described the afforded a Supreme repose” right statute of as “a which is as adopted Court Professor Robert A. Leflar’s right valuable to defendant as the to recov- choice-influencing considerations for choice of judgment plaintiff.” er is to a Givens v. analysis. law Saari, Milkovich v. Inc., Packing, Anchor 237 Neb. (Minn.1973) (en banc). N.W.2d 408 The Dis “These are substan- trict applied these considerations rights recognized tive law Nebraska reaching its conclusion that Nebraska’s sub protected by (emphasis its Constitution.” Id. governs stantive law this case. The Leflar added); Bank, see also Norwest 960 F.2d at factors, includes five and we consid 759. We it think clear that Nebraska state er each in turn. courts see the Nebraska statute of substantive law. A. Predictability of Result Finally, we note that the Minnesota Court cases, As most tort predictability of Appeals on at least one occasion has noted result is of little relevance here. See Lom its disinclination classify anything “to pro- as men, 522 N.W.2d at goes 150. This factor ‍​‌​‌​​​​​​‌​​​‌​​​​‌‌​​​‌​​‌​​​‌‌‌‌‌‌​‌​​‌​‌‌‌​‌‍cedural potential because of doing that so whether the choice of law predictable was will encourage forum shopping.” Zaretsky, before the time of the transaction or event 464 N.W.2d at 550 n. 2. Both Nesladek and giving rise to the cause of not to her husband they admitted that moved to whether that predictable choice was after the Minnesota in part because had consult- transaction or By definition, event. acci ed an attorney and were that aware under unplanned, dents are so in the ordinary tort Nebraska non-starter, law their case was a parties case the can claim legitimate no ex whereas Minnesota’s law was more favorable pectation that a certain state’s law would against to a suit shop- Ford.5 Thus apply in an action on unanticipated event. ping clearly case, is a in factor this which any further possibility reduces that a Minne- B. Maintenance of Interstate Order sota court classify would either of the stat- Nesladek ignore would have us this factor utes at procedural. issue here as as irrelevant in tort cases.6 It is true that Having determined that the Minnesota some opinions Minnesota dealing with this courts would characterize the statutes in issue in tort skip cases of this question as (the substantive does not end our considerations, consideration first three inquiry; it only fact). means that do not auto- in we But the Minnesota Court Ap- matically apply Minnesota peals law. We must recently as September as 1994 consid- go now and, applying forward (the ered all factors five first to a lesser given The other reasons were Nesladek's desire The briefs cite DeRemerv. Intermountain Pacific Duluth, to attend school at St. in Co., Scholastica Express 353 N.W.2d 697 (Minn.Ct.App. which, (and according to Ford's at brief un- 1984). quotation is no anywhere There such in challenged Nesladek), by done, she never has opinion. that quoted We do find the language in and family’s away desirе to move from the Hague v. Allstate Ins. site of the Jeremy’s accident and of eventual (Minn.1979), 'd, aff death. (1981), preceded L.Ed.2d 521 but it is this phrase, conveniently which Nesladek omits: 6. Nesladek's reply main brief and her brief in argues, "Plaintiff agreed, and the trial court quotation: clude this ”[T]he line Milkovich quoting that....” very This selective is involving cases foreign mislead torts makes the advance ing Hague to the Court. ment The court forum’s not interest and adopting merely better rule a rule only stating such but was law the relevant consider 9; fact, Appellant’s plaintiff's ations.” argument. court, Appellant's noting Brief at In Re ply (minor Brief at misquote Brief) Reply in the case had elements of both tort and (emphasis Brief). contract, added Reply Nesladek in looked at all five factors. if there is evidence strong considеration” only case, noting that “[t]ort in a tort degree) “for the to Minnesota moved party ex- implicate Nesladek do generally actions Hague, 289 bringing discussing the suit.” purpose of at pectations,” id. supra, there is length. Id. 49. As discussed at some remaining factors case, sup thus contention reject Nesladek’s indeed such evidence We 150-53. ap- of Nebraska law. precludes application per porting law se Minnesota factors five Leflar any of the plication that the maintenance-of-inter- We conclude tort cases. Ne- the choice of factor favors state-order case, this con- of this In the circumstances the state which is law. Nebraska braska “[M]ain- relevant. quite becomes sideration gave rise to this events that almost all the cases] tort [in order of interstate tenance contrast, occurred. lawsuit the state whose long as as satisfied generally subject with connection remotest has sufficient in conflict purportedly are laws Moreover, the Nesladeks matter of the case. in the facts with contacts shopping this to forum have admitted Myers, being litigated.” issues the maintenance practice that undercuts support here does 242. The record order. interstate ground. this law of Minnesota choice Task precipitate Simplification Judicial so limited so C. Although not (Ford challenge from constitutional have lit- would seem to This consideration Minnesota), Minnesota’s do business does here. District tle relevance litigation nevertheless contacts ap- determining, interpreting, and capable of (1) two: Nesla- tenuous, essentially limited to the law Nebraska or the law of plying either trustee of Jere- and serves as now lives dek Minnesota, since both straightforward (2) Minnesota, alleged- my’s estate plain no indication and there is gear se- transmission ly automatic defective in- and the courts’ the statutes language of as- and manufactured system, while lection inadequate pro- of them terpretations Indiana, into was installed in sembled wish to might court guidance a trial vide the Minnesota, Paul, Ford’s St. truck in Co., Casualty Jepson v. General have. See truck owned composite assembly plant. The (en banc). (Minn.1994) 467, 472 513 N.W.2d li- purchased, was not by the Nesladeks modified, in censed, Minneso- or maintained Forum’s Govern- of the D. Advancement Minnesota, in did not occur The accident ta. Interests mental treatment took Jeremy’s medical none law, factor this matter of Minnesota As a expenses Minnesota, no medical in place only of Minnesota’s requires not All of fore- in Minnesota. incurred were interests, also of Nebras- but governmental Nebraska, except place in events took going City, Gate policy. See public ka’s treatment period of rehabilitation a brief for 242. at 451; Myers, 225 N.W.2d at N.W.2d thus has Minnesota Texas. in for where of the case to conceive It is hard being issues facts and “interest little law would not advance forum application of litigated.” Id. A fo- governmental interests. the forum’s the main determining the relevance In state’s the forum law reflects rum state’s given in a factor tenance-of-interstate-order law оf the not be the it would interests —or may consider whether also “the court would consideration forum. Therefore law will en of Minnesota application unless, forum law always the choice favor Hague v. Allstate shopping.” courage forum declared, con- we court as a Minnesota (Minn.1979), Ins. two of the policy interests relative sider “the 66 L.Ed.2d aff'd, Lommen, 152. N.W.2d at states.” Lommen, (1981); also see interests policy considering relative (“One in choice-of-law particular concern Minnesota, note we of Nebraska shopping methodology to minimize repose and law.”). Nebraska statute both the Main choice designed influence statute advance life useful “a Minnesota becomes order of interstate tenance 740’ interest, governmental wit, Further, same restrict we conclude that the Nebraska liability ing injury allegedly by caused go does not so far as to Hodder, products. See older 426 N.W.2d at another of offend upon interests 832; Bank, see also Norwest 960 F.2d at 758 on, which Nesladek relies compensating tort (giving possible rationales the restriction victims. See Jepson, 513 N.W.2d 472. Nebraska). The Supreme Minnesota Nesladek contends that products Minnesota reviewed useful life legis statute’s liability law interest, advances this as the history lative legisla concluded: “The Nebraska statute of repose does not. Al- ture concerned expanding prod about though Nesladek’s assertion be true for liability

ucts open-end to limit intended products liability Minnesota generally, law it ed aging products.” Hodder, 426 is not true for the state’s useful life statute. The Nebraska statute of The life useful statute is a defense to a tort repose clearly advances the same interest the action, and can be said to “advance” the advances, Minnesota useful life statute even interest in compensating tort victims as it furthers governmental Nebraska’s own relative to the Nebraska repose. statute of interest. The useful life of the modified truck would be opinion Hodder, an en banc decision available as a defense for Ford if Minnesota Supreme Court, Minnesota suggests law applied, purely and it speculative that useful life statutes “seem incoherent whether Nesladek would be successful on her theoretically both and operationally.” Id. at claim by if met such defense. In these omitted). (quoted authority The authоr- circumstances, we conclude that the other ing justice possible “wonders it is to devise governmental interests discussed here have a workable repose statute that measures the more relevance under this choice-influencing period by time a useful life concept.” Id. consideration than Minnesota’s interest justices Hodder had no other writing, so we compensating (“On tort victims. id. justified feel concluding that repose stat- ease, facts however, of this our choice is utes an eyes aberration influenced more analyses our predict- Supreme Court.7 ability and maintenance of the or- interstate der than it is our points out, As Nesladek interest in Minnesota does victim.”). compensating a tort in “providing access to its citizens,” courts for its Myers, 225 N.W.2d at We believe that on balance this factor fa- 243, an that interest will not be advanced vors the choice of Nebraska law.' application of Nebraska Application law. of law, however, Minnesota does not advance E. The Better Rule of Law Minnesota’s countervailing dis- couraging shopping. forum “Concern for Jepson, See the part 513 ‘better law’ is of a comprehensive N.W.2d at 471. Because of the pres- test and distinct is to be exercised ence of forum shopping case, only when this other we have choice-influencing consider- good reason to conclude that ations leave balance of choice of law uncertain.” interests application favors Myers, 244; of 225 Nebraska law. N.W.2d at see also Gate point We again out Nesladeks, City, that the al- 410 N.W.2d at 451. We conclude that though citizens, now Minnesota were Nebras- “factual contacts with the forum and state ka citizens when acquired (that policy the two is, considerations” analysis our of trucks that Ken Harvey factors) Nesladek and Kreik- the other Leñar application favor the emeirer combined into one truck law, of Nebraska and so we need not decide time of Jeremy’s injury and death. which state has the better law.8 DeRemer v. 7. The Hodder clauses, court's discussion of other states' tection and the state constitution's ac- statutes period repose presumptive that contain a provision. Spilker cess-to-courts City Lin- neutral, of useful except life was coln, for a 238 Neb. 469 N.W.2d 546 question Hodder, constitutionality. about 426 N.W.2d at 830 & n. 8. The Appeals 3. The Minnesota recently Nebraska Su- Court of noted preme Court upheld validity since has Supreme "that the Minnesota given Court has 25-224(2) against section claims that it violated 'better law’ significant consideration no the state and process equal pro- federal due weight in a case more than a decade.” Lom-

741 majority, have miscon- and the district court Express Intermountain Pacific un- controlling rules choice-of-law strued (Minn.Ct.App.1984). In 694, 698 N.W.2d majority empha- law. The der Minnesota Leflar’s instructions event, Professor under plaintiff guilty that because the makes sizes law that which as better to choose Nebraska, shopping, not Minnesota the time sense for “good socio-economic respect, all due prepared applied. be With we are law should speaks,” the court when Thе reasoning Minnesota makes little sense. law or this line of say either Nebraska pun- Jepson, 513 offers a sanction or majority’s approach the other. superior law is Leflar, A. to choice (quoting Robert than an ishment N.W.2d at rather Choice-Influencing methodolo- on Minnesota’s conflicts Law: More of law under Conflicts Considerations, 1588 gy- 54 Cal.L.Rev. (1966)). a different merely reflects Each Supreme importantly, the Minnesota More problem, both “neither to the same approach quite that in tort situa has been clear Court Jep objective way.” worse in better nor tions, only two items of Professor the last son, at 473. are choice-influencing considerations Leflar’s majority provide fails relevant. V. existing Minnesota law. analysis of careful above, we hold discussed rеasons For the Freightways v. Consolidated Schwartz subject to the Nebraska ease is this 487, 221 Corp., Minn. N.W.2d judg- Accordingly, repose. statute denied, (1974), cert. is affirmed. of the District ment (1976), Bigelow v. 48 L.Ed.2d Halloran, 10, 12 (Minn.1981), the Judge, dissenting.

LAY, Circuit Senior Supreme Court stated respectfully I dissent. Leflar’s five- items of Professor the last two methodology relevant to tort cases. point diversity and is action Although this is a this, “1) advance These considerations beyond two authority binding interests; concerned, I ment of the forum’s law is far as Minnesota least as 2) rule of law.” of the better application as to compelled dissent feel nevertheless Schwartz, 12; Bigelow, N.W.2d analysis.1 I do majority’s choice-of-law N.W.2d at it is obvious both I think so because repose Forks, functionally served as statute City East Grand men existing Lawson demon- at that time. аctions (Minn.Ct.App.1994). n. 4 repose period be could indeed strated that tolled: majority’s quarrel ultimate

1. I do not 25-224(4) provides that notwith- Section is sub- finding that Nebraska's by § imposed 25- However, standing 10-year ban question I do think law. stantive ‍​‌​‌​​​​​​‌​​​‌​​​​‌‌​​​‌​​‌​​​‌‌‌‌‌‌​‌​​‌​‌‌‌​‌‍224(2), “any or claim which cause of action acknowledges. majority I than closer much 22, 1978, may July be any person may significant that the statute it is believe following years brought than not later two procedure of Ne- appears section under civil such date.” § I 25-224. Neb.Rev.Stat. braska's code. See limitations, period foregoing 2-year of The emphasis majority of misses feel the also however, tolling by [Nebraska’s is extended argument relating to the colloquy at oral court's provision]. tolling rea- equitable the statute of for at 258. 408 N.W.2d incapacity. infancy Lawsоn v. or sons of at issue 725, 256, tolling provisions not Co., are The that 258 fact 408 N.W.2d Motor Neb. point that Co., The is not material. is (1987), case Products v. Drackett and Macku rights cannot be (1984), simply law and substantive substantive 343 N.W.2d Neb. statute been done Nebraska’s tolled as has could has or illustrate that However, the Nebraska repose. I leave to this past on basis tolled in have been definitively in the resolve Supreme to more Court generally that this fact infancy incapacity, and so, recog- simply do need to and provision. event that procedural is a demonstrates it controlling opinion in is tolling that our nize hold that Nebraska's and Macku Lawson Thus, agree necessarily with the do not I incapacity Neb. case. analysis infancy tolls provision and opinion majority by the 25-224(4), made 25- rather thаn section Rev.Stat. 224(2), repose, but I aspect of the statute be- substantive in this case. Yet issue which is at pur- 224(2) provision it is a substantive 224(4) assume that section extended cause section enactment, poses of this dissent. it years the latter statute's two after I am itself, not aware that the Schwartz and is not a valid reason for choice- Bigelow fact, cases have been overruled. of-law (emphasis result.” original)). in in v. DeRemer Intermountain Ex Choice ought not Pacific determine of forum Co., press (1984), 353 N.W.2d choice law. Appeals, following Court of (final added). N.W.2d at 151-52 emphasis Schwartz, analysis in Bigelow, and Milkovich majority The places also upon reliance Saari, (Minn.1973), v. 203 N.W.2d 408 reiter Jepson Co., Casualty General ated: relevant “The considerations in tort (Minn.1994), in its discussion of forum (1) cаses are two: advancement of the fo shopping. majority Yet recognize fails to (2) interests; rum’s appli that Jepson is not a tort ease but is in fact a cation of the better rule of law.” ease involving insurance contracts. See id. Moreover, clearly the Schwartz court dis- at 470. In such a it is clear all five counted the shopping relevance of forum in of the Leflar considerations become relevant analysis. Minnesota’s choice-of-law The in applicable determining the choice of law. court stated: Jepson stated that under certain narrow cir- argue plaintiff Defendants was fo- cumstances, Minnesota does rum shopping. say Suffice it to that the in preventing forum shopping contract open courts of this state are to those resi- cases. Id. at Jepson said, 470. As the dents properly and nonresidents alike who this is true: invoke, limitations, within constitutional where we sending would be a message to jurisdiction of these courts. In the people those living on our borders to take bar, plaintiff case at is a Minnesota resi- advantage of the benefits our neighboring currently dent who suffering from exten- states offer in terms of lower insurance sive injuries. and severe It would be at rates, lower registration fees, vehicle plausible least presume that Minnesota taxes, then, sales if they injured, courts plaintiffs logical would be choice. advantage take greater Further, noteworthy it is plaintiff did willingness compensate tort victims. bring first his action in another state Minnesota does not have an interest bring then later suit in this state. еncouraging that conduct. 513 N.W.2d at 471-72. dangers The which Furthermore, support its use of forum Jepson addresses context an insur- shopping, majority quotes Lommen v. ance contracts suit simply present City Forks, East Grand the current which strictly a tort 151 (Minn.Ct.App.1994), out of context. The case. court, however, Lommen actually followed the principle in Schwartz and concluded that Similarly, point I out that Hague party’s choice of forum should be irrele Allstate (Minn.1979), Insurance 289 N.W.2d 43 vant: 'd, aff City might asserts that Lommen (1981), have L.Ed.2d 521 in which the court dis filed suit in Minnesota to avoid North Da- cussed all factors, five choice-of-law it again kota’s seat belt defense and because North analyzing the stacking of insurance con

Dakota provide joint does not and sev- tracts. The court makes clear Hague eral liability; City argues that Minne- case that its of the choice of laws sota law simply should thus apply because was to examine both tort and contract con voluntarily Lommen the Minnesota chose siderations. Id. 48. It significant is forum. To the extent Lommen the trial court had deemed the advancement been forum shopping, we note that we do of the forum’s governmental interest and the prefer any Minnesota law on substan- better rule of only law the relevant consider tive issue simply because Minnesota is the ations. Id. It is interesting to note that the forum. Leflar, See Robert A. American court held the trial court was affirmed. Id. (3d 1977) Law at 182 ed. at 49. Nonetheless analyzed the court Conflicts each (“Mere preference, forum as such and of these interests because it was not

743 They dents of Minnesota. have lived here compensation of question of dealing with the They May pay of 1992. taxes under victim, policies since also with but a tort stacking They insurance con- either or own a underlying Minnesota law. rent interests 48-49. in Id. at home Minnesota. Even Jill Nesladek tracts. family solely moved to Minnesota and her Thus, majority misstates the think the I lawsuit, commencing purpose in Minne- analysis that exists of law conflict not, it still remains that is which did she sota, clearly contrary to approach is and its state, legitimate a resident of this and as the Schwartz, Bigelow, and cases of the beacon clear, Minnesota courts have made its courts first make clear that These cases Milkovich. open to both residents and nonresidents. majority a tort this is because Schwartz, 221 N.W.2d at 669. Seе only the advancement should have considered and the governmental interest the forum’s addition, In Minnesota also has substantial addition, I think In rule of law. better alleged wrongdoing; contacts with the that which the policy in Minnesota is is, placed in Ford assembled and then announced; previously case has Schwartz commerce the actual vehicle in stream of open courts are namely, the Minnesota allegedly question. The defective vehicle alike who and nonresidents those residents wrongful brought which about the death was jurisdiction. 221 their properly invoke commercially by in the state of sold in the Lommen As the court N.W.2d at 669. The fortuitous fact Minnesota. stated, shopping is not recently case wrongful happened to occur in Nebras- death any result and choice-of-law valid reason plaintiff in ka or that the lived Nebraska not, dictates of common under the should time of the occurrence is not of sense, choice of law. See determine the greater weight than Minnesota’s contacts. principles in With these at 151-52. N.W.2d filed, was At the time the lawsuit methodology mind, used under I turn to the litigation great least interest proper law Minnesota law to determine than, as, probably greater Nebraska’s.2 apply in this case. considerations, laws Turning policy fo- analyzing the advancement useful-life statute question interest, to both we look rum’s —Minnesota’s fur- statute of and Nebraska’s policy considerations. factual contacts and —both placing some time limit the interest of ther Schwartz, I See, at 668. e.g., products actions. bringing has as thаt Minnesota respectfully submit clearly poli- an additional Yet Minnesota as, plaintiffs great if not more contacts deterring putting a cy Ford from interest fami- The Nesladek lawsuit than Nebraska. of com- Nesladek, product into the stream defective trustee ly, including Plaintiff Jill Mitchell, See, e.g., Nesladek, within its borders. are resi- merce for the estate (1st Cir.1974) 177-78 jurisdic 494 F.2d frequently apply the law of the Motor 2. Courts Island, product allegedly plaintiff's (concluding defective domi tion where Rhode placed com cile, into the stream of assembled or stronger governmental in the interest had domiciled, merce, plaintiff rather Massachusetts, or where where the au the state suit than the accident or of the state where than the law occurred, because Rhode Is accidеnt tomobile See, e.g., Star injury Mitchell Lone occurred. compensating strong its interest land has a Inc., (5th Ammunition, Cir. 913 F.2d resulting injuries in severe for torts residents 1990) (holding should substantive law Texas’s deaths); Mooney Corp., Lewis-DeBoer Aircraft apply law of the state where rather than the (D.Colo.1990) (finding fact F.Supp. occurred, particu has a because Texas accident allegedly defec made and sold that the defendant product strong defective larly "when the Texas, outweighed fact airplane latch in tive door placed question was manufactured plane plaintiffs were from Colorado Texas); In re Air Crash of commerce” in stream there); Massey-Fer Kozoway v. crash occurred Cir.1985) (3d Disaster, n. 7 F.2d (D.Colo. 1989) Inc., F.Supp. guson, (choosing apply Pennsylvania law becausе that of Alber (determining law rather than law Iowa governing the greatest interest in has the state ta, hay apply defective should because Canada borders, products al within its manufacture of Iowa, while fact that baler was manufactured happened helicopter though crash at issue injured Canada was denied, plaintiff on his farm in elsewhere), cert. fortuitous). (1986); merely v. Ford Turcotte 88 L.Ed.2d 891 at 250. reasons, F.2d This interest foregoing better For the I respectfully ‍​‌​‌​​​​​​‌​​​‌​​​​‌‌​​​‌​​‌​​​‌‌‌‌‌‌​‌​​‌​‌‌‌​‌‍served Minnesota’s useful-life statute be- dissent. may

cause it is less restrictive and therefore greater contribute to deterrence than Ne- addition, gen- braska’s law. allowing eral interests access to its courts for its residents compensating tort vic- tips

tims the balance further in favor of SIDEBOTTOM, Appellant, Robert T. See, e.g., Bigelow, Minnesota’s rule. (“[T]his at 12 court has often said that it is in the of this interest state to see DELO; Jay Nixon, Paul Appellees. fully compensated.”); tort victims are No. 94-1463. Myers Employees v. Government Ins. (Minn.1974) (“Minnesota United States Appeals, Court of ... advances its Eighth Circuit. providing access to its courts for its citi- ”). Sept. Submitted 1994. .... zens Decided Jan. 1995. Thus, the gov- advancement of the forum’s Rehearing Suggestion interest, for Rehearing ernment both terms of factual con- En Banc Denied March policy considerations, tacts weighs in applying favor of Minnesota law. Even as-

suming, arguendo, points this factor

equally Nebraska, to Minnesota and Minne- sota’s useful-life statute is the better rule of law under existing the circumstances particular case. imposition a repose

period in this factual context would not serve purpose. wоrthwhile A statute of based on the idea that a defect does not

really product exist has been use for longer repose period. here, than the Yet according

least plaintiff’s to the allegations, Ford many years has known for of this de- fect and failed to proper- recall the vehicle or

ly warn dangers. of its To now allow Ford escape possibility merely

because repose period passed, even

though known of the exis- tence of long the defect before the statute’s

running, purpose serves no but to arbitrarily

punish plaintiff. Thus, Nebraska’s in-

flexible statute of is not well suited for these circumstances.

Rather, because this case involves a known product, defective equities allowing favor plaintiff bring cause ‍​‌​‌​​​​​​‌​​​‌​​​​‌‌​​​‌​​‌​​​‌‌‌‌‌‌​‌​​‌​‌‌‌​‌‍action and letting then jury prod- decide whether the uct has run the course of its useful life. I

contend, therefore, that Minnesota’s law should be applied under Minnesota’s choice-

of-law methodology.

Case Details

Case Name: Jill Nesladek, as Trustee for Heirs and Next of Kin of Jeremy J. Nesladek, Decedent v. Ford Motor Company

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 26, 1995

Citation: 46 F.3d 734

Docket Number: 94-1885

Court Abbreviation: 8th Cir.