376
Opinion of Blackmun, J.
ants, whose recruitment of Nelson took place almost entirely through HCA. See generally Montana v. United States, 440 U. S. 147, 153 (1979) ("a final judgment on the merits bars further claims by parties or their privies based on the same cause of action"); Lawlor v. National Screen Service Corp., 349 U. S. 322, 330 (1955) (defendants not party to a prior suit may invoke res judicata if "their liability was . . . 'altogether dependent upon the culpability' of the [prior] defendants") (quoting Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U. S. 111, 127 (1912)); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4463, p. 567 (1981) (recognizing general rule that "judgment in an action against either party to a vicarious liability relationship establishe[s] preclusion in favor of the other"); Restatement (Second) of Judgments § 51 (1982).
But the question of claim preclusion, like the substantive validity under state law of the Nelsons' negligence cause of action, has not yet been litigated and is outside the proper sphere of our review. "[I]t is not our practice to reexamine a question of state law of [this] kind or, without good reason, to pass upon it in the first instance." Sheridan, supra, at 401. That a remand to the District Court may be of no avail to the Nelsons is irrelevant to our task here; if the jurisdictional requirements of the FSIA are met, the case must be remanded to the trial court for further proceedings. In my view, the FSIA conferred subject-matter jurisdiction on the District Court to entertain the failure to warn claims, and with all respect, I dissent from the Court's refusal to remand them.
Justice Blackmun, concurring in the judgment in part and dissenting in part.
I join Justice White's opinion because it finds that respondents' intentional tort claims are "based upon a commercial activity" and that the commercial activity at issue in those claims was not "carried on in the United States." I
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