This episode is my interview with Alexander Ross, Jr., the lawyer who represented Robert Nicastro in J. McIntyre Machiner Ltd. v. Nicastro. The interview took place on October 14, 2020. Because we recorded our conversation with Zoom, the quality of the audio is satisfactory, but not ideal.
This episode is my interview with Alexander Ross, Jr., the lawyer who represented Robert Nicastro in J. McIntyre Machiner Ltd. v. Nicastro. The interview took place on October 14, 2020. Because we recorded our conversation with Zoom, the quality of the audio is satisfactory, but not ideal.
This episode of the Civil Procedure Podcast is an interview with Alexander Ross Jr. Mr. Ross is a lawyer who represented Robert Na Castro in the famous McIntyre versus Na Castro Supreme Court opinion that put an additional gloss on the Supreme Court's specific jurisdiction jurisprudence. Mr. Ross, who was then a partner at a firm that he founded, represented Na Castro through all three levels of the court system in the state of New Jersey, and then also represented the respondent at the Supreme Court. Mr. Ross is now a partner at the law firm of Weber Gallagher in New Jersey. Mr. Ross is a fantastic interviewee, and I'm confident that you will enjoy this conversation as a compliment to your study of the j McIntyre Machinery Limited versus Castro Supreme Court opinion. Alexander Ross, welcome to the podcast. It's a pleasure to have you here. Look forward to discussing the Castro case with you. One good place to start is surely the beginning of this case and how you got involved in it, um, now nearly 20 years ago, right?
Speaker 2:Yeah, it's a interesting story, professor, and thank you for inviting me to your, uh, podcast. Uh, I've, I've had many, uh, many comments on my, uh, case, obviously, and, um, most of them rather incredulous, but nevertheless, uh, it's always a pleasure to talk about it. The interesting fact with the Nicastro case is that it actually came to me as a worker's compensation subrogation action. I represented, uh, an insurance carrier, and, uh, the insurance carrier paid a substantial amount of money for Mr. Na Castro's worker's compensation benefits. Obviously, as you know from the case, he was working at a scrap metal factory and was walking alongside what's called an alligator shear, which is, uh, as, as you can picture it, as a device which has a, uh, like a big scissor that comes down and cuts metal and is set on an automatic, uh, c uh, circulating, uh, time where every 15 seconds it comes down, you can set it, you know, manually to work as you're working on it. Or if you're in a busy scrap metal yard, it comes down constantly so they can constantly feed metal into it and cut the scrap metal into smaller pieces. In any event, Mr. Na Castro, uh, this is only about a, a month after the, um, the nine 11 disaster. Anyway, he was, uh, walking alongside this machine, and he tripped and fell over some debris that was on the floor. And as he was falling, as we all do, he put his hands out to try to break his fall. And unfortunately for him, his, uh, his right hand went under the, uh, shear as it was coming down to cut metal, and, uh, instantly severed the, the four fingers on his right hand. And, uh, obviously, uh, this is a, a tremendous injury for a working man, especially someone in a scrap metal yard. And he was immediately, uh, taken away, uh, for a surgery and, uh, was out of work for a substantial period of time and has, uh, obviously, permanent and disabling injuries. And the, the worker's compensation carrier paid a substantial amount of money for his medical bills and for his lost wages and so forth. And, um, also a, a large permanency award. And as a result in New Jersey and in many other states, uh, uh, the worker's compensation carrier has a lien against any potential tort visa that might have been responsible for this accident. So, uh, clearly he could not sue his employer because the worker's compensation bar would prohibit him from suing his employer because there was, uh, debris on the floor where he fell. So that was out. So what was left was, uh, is there, was there something wrong with the machine? And so we, uh, sent an investigator over to, uh, the machine. And lo and behold, the machine did not comply with any of the many, uh, guarding requirements that are present in, uh, New Jersey and, uh, actually throughout the country whereby a, uh, a guard should be placed alongside the machine. As you see on many, uh, saws, for example, even, uh, saws that use at home where a, a plastic or metal guard comes down as you make the cut for this exact reason that if you slip your hand doesn't go under the saw and result in, uh, in lost fingers. Uh, this machine didn't have any guarding at all. And I, ironically, unlike many other cases, we had our prox liability expert, uh, an engineer who, you know, clearly listed a number of violations of safety standards due to the absence of, of any guarding. And so then we look to see, well, who made this this horrible machine that doesn't have any kind of guarding on it? Of course, one, one thing you have to look at too was did the employer somehow remove the guarding, in which case the manufacturer would be off the hook? And we spoke to the, uh, employer, and he says, no, I, I installed the machine exactly as is. I didn't add anything. I didn't take away anything. So that, that ruled that out, because that's a common defense in these type of cases. And, uh, we, we looked at it and sure enough, it was made by, uh, McIntyre machines of the United Kingdom and in Nottingham, England of all places. And, uh, then we went on the internet, as everybody else does, and trying to find out something about this machine. And of course, they had a wonderful website, which was part of the, uh, appendix to the Supreme Court case, eventually saying how that they are the, uh, largest, uh, supplier of industrial scrap metal recycling machines and so forth and so on. And they had a, uh, website, which showed the, uh, entire globe with, uh, blinking lights showing all of the, uh, places in the world where they sell their machine in South America and Asia, and India, Africa, and of course, north America, including, uh, many states in the United States. And, uh, so, uh, we, uh, found out that at that time, uh, how are we gonna serve these people? And, uh, we found out that they had a distributor. If you go on their website, they say, if you are in this, in the United States, please contact our distributor. And they have distributors throughout the world. This distributor happened to be in Texas at that time. And, uh, so we served the, uh, distributor in Texas, and then we also served under the Hague Convention. We sent our paperwork over to, uh, Nottingham, England. So this was a very complex, uh, process, which is, uh, as you might imagine, rather expensive, you have to hire process servers in England and comply with their roles and so forth. But there is a convention which allows Americans, uh, among other countries to serve foreign manufacturers. So we, we got that all accomplished. So the litigation was, was at hand. The, uh, machine itself had been purchased about seven years earlier by the owner of the scrap metal facility, uh, after he attended a convention, uh, of scrap metal recyclers, uh, in Las Vegas. And, uh, the United Kingdom Company, the actual United Kingdom Company, not the local distributor, was present and had a booth there as if you've ever been to any of these conventions. Uh, and he was extolling the virtues of his machine. And the, uh, the employer said, this is exactly what I need for my company. It's a wonderful thing. And, uh, he bought it as a result of visiting that, and was actually the, um, the on the United Kingdom, uh, president was there at that convention and, and spoke to this fellow. Unfortunately, the owner of the company had a stroke and was unable to give us a, an affidavit to that effect. But he did say that he, uh, he was able to, uh, provide an affidavit that said that he met with the, uh, McIntyre, United Kingdom folks in, in Las Vegas. And, uh, that's how he was convinced to buy the machine. At that time, the way the British manufacturer had its distribution set up was that it would simply, uh, ship the machine to a Ohio company, which had the same name called McIntyre, uh, America. And that company would then in turn ship the machine to the ultimate user, in this case, the New Jersey company. The, uh, the irony, of course, is that the McIntyre British Company would not ship a machine to the Ohio company unless there was a hard contract for the machine. So it wasn't just a, a spec job where the Ohio company would have an inventory of a dozen of these machines sitting around in its warehouse, and then just ship it out. They would have to say that, okay, we have a buyer in New Jersey or Ohio or wherever, and ship us the machine. And, uh, and, uh, McIntyre, uh, UK would, uh, ship the machine to Ohio, and then in turn, it would, um, be shipped to New Jersey. And unfortunately, the Ohio Company, uh, went out of business and filed for bankruptcy and liquidation about, uh, a year before Mr. Ne Castro had his injury. So it was no longer in business, and it was gone and, uh, had no insurance. We checked into that and had been totally liquidated by the time the case came to me. It was about two years, almost two years after, uh, Mac, uh, MC Castro's injury. Cause the statute of limitations in New Jersey for this type of thing is two years. And, uh, that company was long gone, and there was a new distributor in Texas, which is why we served it in Texas. Also, uh, long story short, the only, uh, viable entity that was available to Sue was the British company. So we filed the lawsuit, we, uh, in, uh, Bergen County, New Jersey, which is the county where this, uh, injury occurred, and we proceeded along with, uh, the litigation. And, uh, uh, they answered, the complainant among their defenses was, uh, the jurisdiction defense. And I remember having, uh, a number of conversations with the attorney representing the company, and him thinking that, uh, we'll never prevail on this defense and so forth and so on. But he, as a flyer, he filed a motion for, uh, summary judgment on the issue of personal jurisdiction. And lo and behold, the trial court judge, uh, agreed with him and said, uh, yeah, there's, uh, there's no personal jurisdiction in Jersey because the, uh, McIntyre company, there's no proof that they wanted to sell anything in New Jersey. And of course, we were incredulous. And, uh, we filed a motion for reconsideration and asked that there would be allowed at least a jurisdictional discovery, which means that you now have to have an entire case within a case in order to determine whether or not there is in fact, personal jurisdiction over this case in New Jersey. So we had, uh, we propounded interrogatories on the British company, and they, uh, provided us with a number of emails. Not all emails, they said many of them were somehow lost. And of course, there was no way to determine whether that was true or not. But many of the emails they did send were, were in our judgment, very incriminating, where they stated, uh, among other things that they just want to sell their product throughout the United States. We don't really care where that we wanna get paid. And, uh, among other things, they, uh, specifically indicated that they did not like American law because we have this nasty prox liability law where you can actually sue people who manufacture machinery that, uh, you know, hurts people. And, uh, they didn't like that. So we had a lot of, uh, very good emails indicating that they were present at, I think, 15 straight, uh, annual conventions of this, um, scrap metal industry. And, uh, of course, none of the conventions, unfortunately, were in New Jersey. They were in Las Vegas, Orlando, California, many states. But of course, since New Jersey is not ex actually a garden spot for this type of thing, they never actually made it to, uh, to New Jersey, although ironically, New Jersey, it turns out it has one of the largest scrap metal recycling industries in, in, in the country. Uh, but nevertheless, uh, we were hoping they would've had a convention in Atlantic City. But, uh, regrettably, that was not the case. So they were in Las Vegas. So, uh, I apparently, according to the Supreme Court, ultimately, uh, I could have sued them in your, uh, in your home state there. But, uh, long story short, uh, we went up to the, uh, we, the trial judge said, well, I understand Mr. Ross. They said a lot of, uh, emails around, and they were all over the country, but regrettably, they never actually, uh, consented or, you know, deliberately tried to target New Jersey. So therefore, there's no personal jurisdiction. So, uh, the, uh, uh, trial court, the, what we call the law division in Jersey, uh, dismissed the case. We filed an appeal immediately with the Appellate Division and the Appellate Division, uh, agreed with our version of it, saying that indeed there is jurisdiction and cited a number of cases, uh, both federal and state, which, uh, New Jersey has a very liberal long arm statute, which basically allows, uh, jurisdiction, uh, almost in every instance, unless it's, it's really obvious that, uh, it had nothing to do with New Jersey. So this was, you know, specific jurisdiction as opposed to general jurisdiction. And, uh, I'm sure your, your students know all about that because, uh, you know, as, as<laugh>, you said in the Castro case, is now the leading case on this subject, uh, regrettably. But, uh, nevertheless, um, the Appell division agreed with us. And, uh, then, uh, the, my adversary appealed it to the New Jersey Supreme Court and the New Jersey Supreme Court. One of the problems from a practical standpoint was that the, uh, the New Jersey Supreme Court, which took longer than the US Supreme Court to wish its opinion, the, the opinion from New Jersey Supreme Court took about 13 or 14 months to come out, as I recall from when we argued it until when it was decided. Nevertheless, the opinion was so broad and was so, I don't wanna say breathtaking, but was so, uh, uh, liberal in its, uh, description of how the entire world is now a marketplace that, uh, this, uh, I think this turned off this Supreme Court, and, uh, it was just a bridge too far. And there was one dissenter, I remember, uh, him, one of the justices on the New Jersey Supreme Court, who wrote a, a dissenting opinion, which was about two paragraphs, and basically saying that he, uh, hereby invites the US Supreme Court to write this terrible wrong that has occurred here. And as a result, uh, uh, the Supreme Court, uh, accepted, uh, cert, which, uh, as a, as any lawyer will tell you, uh, of all the thousands of cases that are filed with the US Supreme Court, they take about 83 cases over the course of a year. So, of course, uh, I naturally assumed, well, you know, what are the chance, what are the odds of me, uh, getting cert here? This, you know, I, I'm all, I'm well set in this case. And, uh, sure enough, uh, you could have knocked me over with a feather when I, uh, opened, uh, my email to find out that in fact, the US Supreme Court had accepted cert, which was, uh, shocking. And, uh, it's funny, I've attended seminars with the, uh, New Jersey Supreme Court Justice, who wrote the opinion in, in my favor. And he, he, too is still to this day, dumbfounded and is, uh, struck dumb by the fact that, uh, his case was reversed because he really put a lot of effort into his opinion. It was, it was about a 60 page opinion, which was wonderful. And so that's, that's the case in a nutshell.
Speaker 1:I'm curious whether in a subrogation action like this, what was the extent of your interaction with Nick Castro himself? Did he have, have a lawyer that was also lurking in the background here, or is this just entirely you from the beginning and you didn't even need to meet him?
Speaker 2:I, it, it's the latter. It was entirely me. Uh, I communicated with him many times, uh, uh, via phone. Uh, he didn't have a lot of email at that time, as I recall. And he is a, he's a working man, and we spoke many times, you know, he answered interrogatories for me and so forth and so on. But because of the way the case came into my office, it was essentially through the insurance carrier, but I represented him as well. Uh, obviously if we had gotten a positive verdict, he would've recovered, uh, money, the worker's compensation, he would've had to been repaid back, which is mandatory in New Jersey, uh, at a certain, uh, rate. And, uh, yeah, that's, that's how it worked, uh, with that. So that was a, a, at that time, a very steady stream of business for me was to get subrogation work from insurance carriers. Uh, and I would specialize in suing, uh, on behalf of, uh, prox liability or other industrial type accidents.
Speaker 1:Can you discuss what roughly the amount of the lien was? Just the order of magnitude? Is it a hundred thousand dollars, or?
Speaker 2:Well, I think, uh, my recollection was that the lien was upwards of over 300,000, somewhere
Speaker 1:300. Yeah.
Speaker 2:So, so yeah, he had a lot of surgeries to repair. They, uh, as I recall, they, uh, they did some reattachment surgeries on his hand. And, uh, it, it was really a devastating injury for this, for this man. And meanwhile, while the case was pending, his wife passed away. So if you look at the caption of the Supreme Court, uh, case, you'll see that he is also listed as the administrator of the estate of his wife, Roseanne, the Castro, who, uh, had a consortium claim, obviously, for his injuries. So the, the case took a long time to wind its way from the time of his injury in October of 2001, until this, uh, opinion came down in June of 2011. You can imagine it's, it's almost 10 years.
Speaker 1:So essentially, if you had recovered$600,000, the 300,000 would've paid off the lien, and 300 would've gone to him.
Speaker 2:That's essentially right. Roughly two thirds of the lien gets paid back again, there's a deduction for, uh, the work that the attorney does. So it's 66% of the lien, typically. Mm-hmm.
Speaker 1:Do you think that the case is any weaker as a subrogation action by an insurer compared to a straight up personal injury suit by a plaintiff with no fingers sitting at the plaintiff's table?
Speaker 2:I don't think so, because Mr. Na Castro, uh, regardless of whether it was me or someone else, it was some lawyer up in Bergen County who handled Mr. Na Castro's case. Uh, he would never let be required to repay the, the subrogation leave. And, uh, the information about that this started out as a subrogation case, you know, was, was not, not an issue in the courts whatsoever. The courts didn't care. And that's just something that's, uh, just required.
Speaker 1:So you didn't seriously consider suing in Nevada where the sale sort of originated, nor in Ohio or Texas, where the distributor was located?
Speaker 2:Well, there was no Texas piece. The dis the, the fact of the matter is the distributor, because the Ohio distributor had gone out of business. The McIntyre UK company hired a, a new distributor in Texas mm-hmm.<affirmative>, and that just happened to be the distributor at the time when I filed my lawsuit. So mm-hmm.<affirmative>, the, the, the funny thing is the, the same argument was brought up by the Justice who, uh, wrote the dissenting opinion in the New Jersey Supreme Court. He said to me, Mr. Ross, why don't you just bring this case in Ohio? Mm-hmm.<affirmative>. And I said, well, uh, there's no one in Ohio left to sue, your Honor. The company that was the distributor is gone. The accident didn't happen in Ohio. None of the doctors who treated Mr. Ne Castro are from Ohio. They're all from New Jersey. The machine itself is in New Jersey. The expert witnesses will have to visit the machine in New Jersey. There's nothing in Ohio to sue. The first thing that would happen if I sued in Ohio would be the defense would raise forum non convenience. There's nothing going on in Ohio. Why are you here? And they would be, right. You know, we're gonna drag doctors and Mr. Na Castro and expert witnesses to some court in Ohio for a company that no longer exists. I mean, there's literally nothing to sue in Ohio at that time. So, uh, it was frankly preposterous and it was preposterous to sue, uh, in Texas or anywhere else, because there's simply no connection to any other state in United States, except New Jersey.
Speaker 1:And ditto Nevada
Speaker 2:Doesn't make any sense, especially since, you know, I was convinced that there was, in fact, jurisdiction in New Jersey, and I had an appellate court agree with me and the New Jersey Supreme Court agree with me and<laugh>, you know, what more proof do you need? You know, it's, uh, you had a very, uh, a lot of very intelligent judges who, uh, were my favor, not to mention the dissenting opinion in the Supreme Court, which is, uh, in my, in my, uh, I read it again this morning, frankly, it's, it's devastating against the, uh, the plurality opinion.
Speaker 1:I think your description of the New Jersey Supreme Court opinion is fascinating. You, you won too. Well,
Speaker 2:I won too. Well, if, if they had simply, uh, affirmed the decision of the appellate division, almost certainly the case would not have been taken by the Supreme Court because it would've been just another routine jurisdiction case that had no, uh, no sex appeal, if you will. Right? But when the, uh, the New Jersey Supreme Court with a ringing, uh, opinion that started out with the whole world is a marketplace, I believe it starts out, uh, to that effect. I encourage your students to read the New Jersey Supreme Court opinion, because it's a wonderful opinion and really describes the way the world works. Now, obviously, uh, we can, all of us can go on eBay or many other websites and order something from United Kingdom or, you know, Africa or Asia, or China, as we well know, a lot of stuff comes from China. It comes directly to you. I get, uh, when this, uh, virus pandemic started, we ordered masks and, uh, the masks survive with all kinds of Chinese characters on it. And I suppose that if the masks were defective and, uh, fell apart, I, uh, the Chinese company would say, well, we didn't intend to sell it to New Jersey. You know, what the hell are you talking about? We started to a distributor in Indiana. I don't know where the hell you sell, sends it to. One of the, uh, arguments I made in my Supreme Court brief was that this theory by the McIntyre Company essentially creates a blueprint by which any farm manufacturer can avoid jurisdiction in the United States simply by hiring an American distributor, which happens to be incu or insolvent. And, uh, just sell it to him, and then he'll forward it to wherever he wants to. And you could bypass all of the products, liability laws and all the safety guidelines that we have developed in the United States over the course of the years. So, for example, if you can imagine if, uh, let's say a, a Chinese manufacturer of a vehicle, uh, decided they didn't wanna put airbags in the vehicle cause they're too, too darn expensive, we're seat belts. And they said, well, we're gonna sell it without seat belts. And they find some distributor in, uh, Oklahoma to sell cars, and they advertise cars without seat belts. You know, be a, be a tough guy and buy a car without a seatbelt and<laugh>. And sure enough, uh, someone gets into an accident and, and is severely injured or dies because there's no seatbelt. And the Chinese, matter of fact, well, we didn't intend to sell it in, uh, in Indiana, you know, or, or, uh, Ohio or Utah, you know, we just want to sell it, uh, throughout the United States, not in any particular state. And according to this opinion, they could get away with that. So it's, it's rather remarkable, especially in this day and age. I'm sure at some point in the not too distant future, this will be reconsidered. But right now, that's, that's the current law.
Speaker 1:Well, and your narrative certainly resonates through the dissent with the reference to the pilot, like washing of hands.
Speaker 2:Yeah, that's, uh, that's my favorite, uh, lion, the whole thing. I have to say, justice Ginsburg, she wrote a ma magnificent, uh, dissent. And, uh, you know, she included, um, 12 as an appendix, which, uh, is very rare, 12 cases, which specifically are contrary to the majority or plurality opinion. So, uh, I've never seen that before, where she actually put an appendix that she created herself of cases that are go against what the plurality decided. So, and also, uh, I believe if I read her obituary correctly, there were only about 20 cases where she actually read her dissent from the bench. And this was one of them. And this case came out on the last day of the term. And so obviously this was a subject of great, uh, dispute in the Supreme Court. Cause it, they, they literally released it as the last case of that term. So, and the way her dissent is written, you could tell that it was being circulated as perhaps a majority or plurality opinion. Absolutely. Did not ca did not carry the day. I basically blame, uh, blame Justice Breyer and Justice Alito for not, the not going along with it. So,
Speaker 1:Well, they were, weren't they the ones worried about the Appalachian Potters?
Speaker 2:Yes, that was, uh, I, did you actually listen to the oral argument for
Speaker 1:This case?
Speaker 2:Yes. That's hysterical. Well, it was either the Appalachia, Appalachian Potters or the E Ethiopian goat Herts.
Speaker 1:Yeah, the Ethiopian goat Herts.
Speaker 2:The Ethiopian goat. And then the, the funny part is after the, um, after the oral argument when I was back in my office, um, my staff got me a, uh,<laugh> got me a stuffed goat, and they taped an Ethiopian flag to it. And that was sitting in my office for years after this opinion as, uh, just a reminder that, uh, I neglected to consider the fate of Ethiopian goat, hers when I filed my litigation. And as a result, I'm, I'm just not a, not a good person, so,
Speaker 1:No, no, that's adorable. A nice reminder.
Speaker 2:So, uh, my, my favorite, my other favorite, uh, just a little anecdote from the oral argument. Justice Scalia, uh, uh, asked me how this case would've come out if I had filed it in Bangladesh. And so, as you can imagine, I had studied, uh, in great depth all of the jurisdictional, uh, cases, uh, all the way from Peno versus Neff to international Shu to the more, you know, as Sahi and, and so forth and so on. I just, I just did not, uh, go into Bangladeshi law in my preparation for this case, nor in my many moot courts that I had in preparation for the oral argument, did any of the moot court, the professors say, well, Mr. Ross, you better be prepared, uh, in case there's a Bangladeshi law question that comes out. And so then, uh, I was about to answer that. And then Justice Scalia himself corrected himself, said, no, no, not Bangladesh. India. India. Because India apparently has a federal state system similar to what we have<laugh>. And he wanted to know if the case was brought, brought in the city of Madrass, in whatever state Madrass happens to be in, um, you know, how would the outcome be? And I, I still remember to this day, justice Ginsburg was sitting across the bench and she turned to him and said, and he said they, they would allow a lawsuit like that. And she turned to him and said, oh, yes, they already do. They've done this for years. What are you talking about? And they were like, like an old couple arguing amongst themselves. So it's really rather remarkable. And, uh, one another anecdote to tell your students about the Supreme Court argument is that you're, you're remarkably close to the justices when you are arguing. There it is. Uh, you can literally, if they stuck out their hand towards you and you stuck out their your hand to them, you could almost touch fingertips. They're that close. You can just speak in a normal tone of voice. There's no need to be allowed Voices. I've, I've had many arguments in front of many appellate courts, and by far the Supreme Court, you're much closer to the Justices than in any other appellate court. I've been to the Third Circuit and, uh, New Jersey Supreme Court, of course, appellate division. I, I, I've never been as close to, to a justice or a, an appellate court judge as, uh, as I was in the Supreme Court. It's really quite the, quite breathtaking in that respect.
Speaker 1:Thank you for sharing those, those are fascinating anecdotes. Indeed. Uh, I want to be mindful of your time, but if you would, I'd like to go back one more time to that Texas Supreme Court decision, where I'm absolutely fascinated by the strategic dilemma, the, uh, dare I dream possibility of winning too much. Do you have any regrets about how you handled that appeal? Is there something that you could have done or should have done differently?
Speaker 2:Yeah. Uh, it's funny you should ask that professor, but in, in New Jersey, the Supreme Court gets the same brief that the Appellate Division gets. You are not allowed to write a new brief for the Supreme Court. That's why when you prepare an an appellate division brief, so obviously I appealed the case to the Appellate, which is the Intermediate Appellate Court in New Jersey. And, uh, when you do that, you have to submit like 20, 20 copies of the brief. And I'm always wondering, why do you have so many? And it turns out, because then they forward them to the Supreme Court if there is an appeal to the Supreme. So the reality of the situation is, you, you really have no choice. Um, my adversary petition for CERT to the, um, New Jersey Supreme Court, I oppose that petition basically saying that, look, you know, uh, the, uh, the tele division case is, uh, conclusive and uh, should be upheld and so forth. And I, I did not ask for an appeal to the New Jersey Supreme Court. My adversary did. And, uh, lo and behold, that's the opinion I got. I got this, uh, groundbreaking earth shattering opinion, basically saying that the whole world is a marketplace, which indeed it is, but apparently, uh, only if you consent to being, uh, in a specific state according to the US Supreme Court.
Speaker 1:And how frequently did, and does the issue of personal jurisdiction surface in your practice?
Speaker 2:Interestingly, it's pretty rare. Usually when an answer is filed, uh, one of the affirmative defenses is always personal jurisdiction, cuz you, you must allege it in your answer to the complaint. You don't have to allege subject matter jurisdiction, apparently. You can bring that up at any time. If the court has no power or sovereignty over a case that can be raised, even in the middle of trial, you can say, Hey, wait a minute, I forgot. You have no subject matter jurisdiction, but personal jurisdiction you can waive. And so routinely, attorneys always raise it as an affirmative defense as part of the boiler plate that you put into your answer to a complaint. But to be perfectly honest, it's quite rare that anybody brings it up in part because New Jersey has a very liberal long arm statute. You know, New Jersey is a hotbed of litigation, especially in pharmaceutical cases. Uh, there's a lot of litigation in New Jersey in many respects because the pharmaceutical manufacturers are located in New Jersey. Many of them are Johnson Johnson and Eli Lilly and Merck and, uh, oh, many others. And so, uh, even if you, uh, take a, a pill in, uh, in Iowa and you're injured by the pill, the lawsuit will be filed in New Jersey. But that's because the manufacturer is in New Jersey. So obviously there's a jurisdiction here. But, uh, yeah, where I'm from, the, uh, the big jurisdictional battles are always in Philadelphia. My, uh, the county I practice in is adjacent to Philadelphia and Pennsylvania. And the, the plaintiff's attorneys in Pennsylvania always want to be in Philadelphia County because Philadelphia County is, um, very, uh, is known for having enormous, uh, jury verdict awards. And, uh, so you'll have cases which occur in the, in the far distant rural lands of, uh, of New Jersey somewhere<laugh> in the woods. And they will find a way to bring it, it in the Philadelphia Court of Common plea. But it's in, in, in the state of New Jersey, uh, an actual litigation over a personal jurisdiction is, is rather rare.
Speaker 1:Right. And back on the Na Castro case itself, after the Supreme Court rendered its decision, did the insurer give any serious attention to filing an action in the uk? Was that remotely a possibility? Suing McIntyre UK
Speaker 2:Ar ironically, uh, it's funny you should say that, because while the case was pending in the Supreme Court, the company McIntyre UK filed for bankruptcy in Britain. So they were then, uh, bankruptcy and liquidation. And, uh, it turns out that they had an, the insurance policy, they did have prox liability insurance, but it was out of a Dutch company, so it was out of Rotterdam. The, uh, the, the insurance for them. And, uh, the, uh, attorneys for the Dutch Insurance Company has said that because of the bankruptcy, that, uh, you'd just be on a schedule of creditors, you'd be unsecured and you're gonna get nothing. There's no assets, number one. And number two is in, in Holland that we don't, uh, believe in product liability litigation. So I'd have to literally, uh, bring the case in. Uh, but by then, we're already 10 years after the, uh, the case started, and who knows what the, um, jurisdictional and statutory limits are for, uh, for this type of lawsuit over there. So it got to the point where it was just, uh, not practical to continue.
Speaker 1:I'm curious if there was ever a moment when you had a conversation with Mr. Nicastro, where you had to explain to him that someone who may have never left the state of New Jersey, who was injured at a workplace in New Jersey, who received treatment for those injuries in New Jersey by a product that was permanently installed in New Jersey, couldn't sue in New Jersey. I think it's a useful way to check our legal doctrines to think about explaining them to our clients.
Speaker 2:He was rather incredulous by the whole thing, and he was, he was closely following it. He was interviewed, the Wall Street Journal interviewed me at the time, among other, um, local papers in New Jersey. And, uh, obviously like, like all of us, he was incredulous that, uh, that such a decision could be, uh, could be had. So yeah, it was, uh, one of those things that happened. Uh, when you're in litigation, you never know what the outcome is. You think you have a sympathetic case and a good case and a solid case, and there's all kinds of roadblocks that, uh, your Wiley adversaries throw in front of you, and this was one of them.
Speaker 1:And is it also your impression as it is mine, that while some cases hit the big time and some don't, it's impossible to tell which cases are gonna hit the big time and it's only after they've hit the big time that we're going back over each and every little decision that we made as a litigator and wishing that we had had spent a little more time on this or developed at this point a little bit more, but the big time only comes after those strategic decisions have already been made.
Speaker 2:Yeah, that's, that's get it founded, that's very, very much true. There was nothing really that was, it was, I thought, outstanding about this case. Uh, true the, uh, manufacturer of the machine was in Britain. But, uh, frankly, um, I, I did not, uh, did not strike me as being such a, um, a star making type of situation. I've had other cases which were much more dramatic, frankly, than this one in many ways, uh, which are, you know,<laugh>, dust dusty, uh, heaps of, uh, of trash in a landfill somewhere at this point. But nevertheless, uh, this is the one you, you just never know when you file a lawsuit. It's one of the things your students shouldn't understand is that you have to be extremely careful. You can't assume that this case that I'm filing today is gonna go to the Supreme Court, but you never know, and you have to really prepare and, um, be aware of all the possibilities. So, you know, when you file a complaint, you have to put in as many different, uh, counts as you can al allege what you think has to be alleged. And, uh, now I, I say leave no stone unturned, but that's, that's really true. You have to be prepared for any, any eventuality as, as we had to be in this case.
Speaker 1:Well said. Do you remember studying personal jurisdiction in your civil procedure class?
Speaker 2:Yes, I remember studying personal jurisdiction. I remember the professor and, uh, our professor was, uh, had, uh, previously graduated from that law school. I went to Villanova Law School and he graduated number one in his class and was, uh, a law clerk for a very prominent, uh, judge. Ironically, he never contacted me after this case. I, I frankly, I dunno if he's still living or not, but
Speaker 1:Do you have any advice for modern law students?
Speaker 2:Well, the main thing I would tell them is that when you take on a case of any kind, you have to, uh, look at the case from all different perspectives. A lot of times a case will fall into your lap just shortly before a complaint or a lawsuit has to be filed cause of time delays for one reason or another. And, and, uh, as a result, you don't have a whole lot of time, but you have to cons, make all the possible considerations as to what is the likelihood of success, what are the potential problems in this case, obviously the fact that the, uh, the target defendant was in the United Kingdom, uh, as a manufacturer was a problem, but we did not think an insurmountable problem under New Jersey law. Under New Jersey law. We were correct. It was under the federal law, which we had a problem. But yeah, that's the kind of thing. The other thing they really should think about is, is how are you going to finance this litigation taking a case, uh, through the appellate courts? As you can imagine, this was 10 years of litigation before even one dime was earned on this case. So they have to think about in their own practice, how, how are we financing this? You know, how is this gonna be paid for? I mean, this, obviously, it takes an enormous amount of time to, uh, prepare these appellate briefs and so forth, and to prepare for a Supreme Court argument. So you have to figure out how are you you financing this? Is this something that my firm can handle, or should it be shipped out to a different firm to handle for, for whatever reason, uh, so that it doesn't overwhelm us in terms of either time or money. So that's a, a practical, uh, piece of advice that I would give to your students.
Speaker 1:Last question I'd like to ask my guests, if they have a book that they would like to recommend, fiction, nonfiction, whether or not related to the law?
Speaker 2:Mm-hmm. Well, I have to say that I have started reading the, um, the series of mastering commander books, uh, involving, uh, the, uh, Napoleonic Wars and, and Naval Battles. And, uh, for some reason they just appealed to me. I'm not sure why, but there, that's a commitment. Very, very interesting. And it's a good way to get your mind off, off the law, frankly, is to, uh, read something that occurred, uh, over 200 years ago. And it's, they're extremely well written and, uh, very erudite. And, uh, I would, I would recommend them to anybody other than that. A lot of biographies of, of people's. So
Speaker 1:Thank you Alexander Ross, for your contributions to a profession that I absolutely adore. I enjoyed this conversation very much. You are a perfect guest and on behalf of myself and all who will enjoy hearing this conversation. Thank you for your time.
Speaker 2:All right, well, thank you, professor. I enjoyed it very much too. And if, uh, there's any, uh, further follow up on it, please don't hesitate to contact
Speaker 1:Me. Thank you. Have a good day.
Speaker 2:You too. Take care, sir.