Maybe we should not be surprised when courts within California reach to find personal jurisdiction over out-of-state corporations even when non-Californians sue. That is what BMS v. Superior Court was all about. Right? Well, it happened again last week in Dubose v. Bristol-Myers Squibb Co., No. 17-cv-00244, 2017 WL 2775034 (N.D. Cal. June 27, 2017), and it has us scratching our heads.
This is not an obscure issue. We know from Bauman that a company is subject to general personal jurisdiction only where it is “at home,” which means state of incorporation or principal place of business. (You can view our post-Bauman personal jurisdiction cheat sheet here.) And the Supreme Court famously held just two week ago in BMS that California’s courts cannot exercise specific personal jurisdiction over an out-of-state defendant unless there is “an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.” Bristol-Myers Squibb v. Superior Court, 137 S. Ct. 1773, 1781 (2017). That means there must be a causal link between the defendant’s forum contacts and the alleged injury to the plaintiff. Contacts with other people—even people taking the same drug—do not count.
That is what makes the order in Dubose so confounding. In Dubose, a South Carolina plaintiff sued a New York pharmaceutical manufacturer in the Northern District of California alleging product liability claims arising from her use of a prescription drug in South Carolina. This is Bauman and BMS all over again, right? Well, the district court saw it differently because the plaintiff alleged that the defendant conducted clinical trials within California, which became “part of an unbroken chain of events leading to Plaintiff’s alleged injury.” Dubose, at *3. The district court therefore found specific personal jurisdiction based on those clinical trials, and it distinguished BMS v. Superior Court on the basis that there were no California contacts alleged in that case sufficient to support jurisdiction.
Having found jurisdiction, the district court then promptly transferred the case to South Carolina, where it should have been filed in the first place. But even though the case ultimately came to the correct result—sending a litigation tourist packing—we question the court’s order finding jurisdiction for several reasons. First, we cannot distinguish BMS as easily as the district court did. The alleged California contacts in Dubose were clinical trials. But what are clinical trials? They are physicians prescribing drugs to patients. Sure, the prescriptions are written under approved protocols and data is collected. But a patient being treated in a clinical trial does not look all that different from a patient being treated outside a clinical trial. The Supreme Court held in BMS that “the mere fact that other plaintiffs were prescribed, obtained, and ingested [the drug] in California . . . does not allow the State to assert specific jurisdiction.” 137 S. Ct. at 1871. The clinical trial participants referenced in Dubose were similarly “prescribed, obtained, and ingested” the drug within California.
Second, the district court in Dubose came to its conclusion because the clinical trials purportedly were in the “but for” causation chain leading to the alleged injury. But were they? Pharmaceutical companies typically run clinical trials at centers throughout the world. Were the data from the California clinical trials really a “but for” cause of a patient ingesting a drug in South Carolina at some later point in time? Put another way, if the California clinical trials never occurred, would the product really not have come to market? We don’t know, but our point is that the causal chain leading from a specific, geographically defined subset of clinical trials to an alleged injury seems tenuous at best.
Third, the district court’s order seems to hold that any forum contact is sufficient to support specific personal jurisdiction, so long as it can be related to the plaintiff in any way. But recall that specific personal jurisdiction is grounded in due process, which asks whether it is fundamentally fair to hold a defendant to answer in a forum where it is not at home. At some point, the affiliation between the forum contact and the claim can be so attenuated that it can no longer be said that one “arose from” the other. That is what we think is going on in Dubose.
If specific personal jurisdiction exists in every state where a multi-center clinical trial occurred, then any plaintiff who used the drug conceivably could sue the manufacturer in any of those states—no matter where the manufacturer is based and no matter where the plaintiff resides or used the drug. In the one example the district court cited, that would translate to specific personal jurisdiction in 44 states. Dubose, at *3 (citing M.M. ex rel. Meyers v. GlaxoSmithKline LLC, 61 N.E.3d 1026 (Ill. Ct. App. 2016)). That is not “specific” personal jurisdiction. That more resembles the concept of universal jurisdiction that the Supreme Court condemned in Bauman.
It could not be more unlike the disciplined contours of specific jurisdiction set forth in BMS. The proliferation of jurisdiction to a multiplicity of states allowed the litigation tourism problem to arise in the first place. It is also what led the Supreme Court to reel in personal jurisdiction. Moreover, while the district court observed that “it is not clear what the alternative would be,” we would say the alternative is that Plaintiffs can sue a defendant where the defendant is at home or in states where they reside or where they ingested the product and experienced alleged injuries. The Supreme Court made this clear in BMS too, where it rejected the plaintiffs’ “parade of horribles” and held that its “straightforward application of settled principles of personal jurisdiction” left plaintiffs ample alternatives, whether suing alone or in combination with others.
The case is in South Carolina now, so we doubt this order will undergo appellate review. That’s unfortunate. Another thing is that the district court in Dubose relied most heavily on the M.M. ex rel. Meyers order to support its finding of jurisdiction. But M.M. is currently in the U.S. Supreme Court on a petition for certiorari. In light of BMS, we would not be surprised if the Supreme Court granted cert., vacated the order, and remanded for further proceedings. That would leave Dubose as even more of an outlier.