Today’s guest post comes to us courtesy of Dick Dean and Nick Janizeh, both of Tucker Ellis. They’ve been thinking (as have we all) about the ramifications of the BMS decision on personal jurisdiction, and have come up with some conclusions that we found interesting, and we hope that you do, too. As always, our guest posters are entitled to 100% of the credit (and any blame) for what follows.
In Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”) [ed. note – our post here], the United States Supreme Court concluded that specific jurisdiction must be premised on a defendant’s in-state conduct giving rise to a plaintiff’s alleged injury. The Court explained that plaintiffs therefore could not pursue their claims in a state in which they did not reside or in which they were not injured if a defendant conducted no activity in that state connected to the injury. That other in-state plaintiffs may be advancing similar claims as part of a coordinated proceeding did nothing to change this analysis.
BMS signaled the end of litigation tourism wherein non-resident plaintiffs could tack their claims onto another state’s mass coordinated proceeding. Or so it seemed. Recently, a trio of decisions from state courts have distinguished BMS and permitted out-of-state plaintiffs who were not injured in the forum state to prosecute their claims in that forum. As explained below, the court in each case nevertheless found jurisdiction over non-resident defendants by pointing to a “connection” to the defendants’ conduct within the forum state.
In the DePuy ASR Hip™ Systems Cases, a California court permitted a Connecticut resident who was implanted with a hip replacement device in Connecticut, had the device removed in Connecticut, and received follow-up care in Connecticut to advance her claims (which included design, warning, and manufacturing defect) in California. DellaCamera v. DePuy Orthopaedics, Inc., No. CGC-11-509600, at 3 (Cal. Super. Ct. Nov. 1, 2017). Even given all these Connecticut connections, the court found specific jurisdiction as to DePuy (a non-California corporation) on the basis that the defendant had “collaborate[d]” with two California-resident doctors on the design of the hip implant. Id. at 5. The court found that this “distinguishe[d] the case from the situation in BMS, where the U.S. Supreme Court found that the nonresident defendant did not develop, manufacture, label, package, or create a marketing strategy for the drug in the forum state, and where it was not alleged that the nonresident defendant engaged in relevant acts together with the California resident defendant.” Id. at 6-7.
A Missouri state court issued the second decision as part of the talcum-powder, ovarian-cancer litigation. Even after another talc case involving an out-of-state resident was thrown out of Missouri state court just a month prior for want of personal jurisdiction (Fox v. Johnson & Johnson, No. ED104580, 2017 WL 4629383, at *2-3 (Mo. Ct. App. Oct. 17, 2017) [ed. note – our post here], the court denied the non-resident defendants’ motion to dismiss a Virginia plaintiff’s claims and instead decided to preserve a $110.5 million jury verdict in favor the out-of-state plaintiff (see Slemp v. Johnson & Johnson, No. 1422-CC09326-02, at 11-12 (Mo. Cir. Ct. Nov. 29, 2017)). The defendants argued that there was no personal jurisdiction because the plaintiff purchased and used the products and developed cancer in Virginia, not Missouri. Id. at 3. But the court nevertheless found jurisdiction, stating that, “by contrast [to BMS], there is evidence [here] that Defendants’ conduct giving rise to Plaintiffs’ claims occurred in Missouri. Plaintiffs allege that Defendants engaged in relevant acts within the state of Missouri, including enlisting a Missouri company, PTI Union, LLC, to manufacture, mislabel, and package . . . the very products which caused injury to the Plaintiffs.” Id. at 6-7. Put differently, the court found jurisdiction over the named defendants because of a contractual relationship they had with an in-state manufacturer who was not a named party in the case. See id.
Finally, the Philadelphia Court of Common Pleas found jurisdiction over all but one of the 71 cases currently pending before it as part of Pennsylvania’s pelvic mesh mass tort program. See Order, In re: Pelvic Mesh Litig., No. 829, at 1 (Phila. Ct. Comm. Pleas Dec. 4, 2017); “Pa. Judge Affirms Jurisdiction On Out-Of-State Mesh Cases,” Law360 (Dec. 5, 2017). The court issued a one-page order dismissing the lone Prolift +M case from the program because the Prolift +M product did not “touch” Pennsylvania in any way during its manufacturing process. By contrast, a Pennsylvania company had one—albeit small—role in the manufacturing process for the products at issue in the other 70 cases. Specifically, that company wove together filaments of mesh, which had been made in other states, and then sent the woven mesh out of state for further processing. Notably, however, that company had been dismissed from the litigation pursuant to the Biomaterials Access Assurance Act, 21 U.S.C. §§ 1601, et seq. before this jurisdictional challenge was advanced.
These three decisions are examples of state courts finding jurisdiction over non-resident plaintiffs’ product liability claims so long as it can be shown that the product was somehow designed or manufactured in state. Moreover, the entity responsible for the design or manufacture—as was the case in the talc and mesh litigations—need not even be a named defendant. But the Supreme Court did not go that far. In BMS, the Supreme Court found that a contractual relationship between a non-resident drug manufacturer and an in-state named co-defendant that distributed the drug was insufficient to find specific jurisdiction over the out-of-state manufacturer. 137 S. Ct. at 1783.
Assuming there can be personal jurisdiction based on contractual relationships with third parties not named as defendants, there is a more basic flaw in these opinions. Just because there is specific jurisdiction over one claim (e.g., design defect), that is insufficient to find specific jurisdiction over all claims (e.g., warning claims, breach of warranty claims, and the laundry list of other claims that is usually appended to complaints against the pharmaceutical industry). Several federal circuits have adopted this claim-by-claim standard. See, e.g., Remick v. Manfredy, 238 F.3d 248, 256-60 (3d Cir. 2001) (conducting specific-jurisdiction analysis as to each individual cause of action); Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1180 (9th Cir. 2004) (“Personal jurisdiction must exist for each claim asserted against a defendant.” (emphasis added)). So too have several state courts. See, e.g., Blume Law Firm PC v. Pierce, 741 N.W.2d 921, 925 (Minn. Ct. App. 2007) (“When multiple claims are raised, personal jurisdiction must be established for each claim.”); Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013) (“[S]pecific jurisdiction requires us to analyze jurisdictional contacts on a claim-by-claim basis.”). And it has even been applied in the products liability context. See, e.g., Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 275 (5th Cir. 2006) (“[P]laintiff bringing multiple claims that arise out of different forum contacts must establish specific jurisdiction for each claim.” (emphasis added)); see also id. (noting that plaintiff brought four claims—defective design, failure to warn, negligence, and negligence per se—and explaining that only the design claim arose out of defendant’s contacts with the forum state, the other three did not); In re Testosterone Replacement Therapy Prods. Liab. Litig., 164 F. Supp. 3d 1040, 1048-49 (N.D. Ill. 2016) (citing Seiferth); Novy v. C.R. Bard, Inc., No. 16-cv-02853, 2016 WL 6393596, at *4-5 (D. Ariz. Oct. 28, 2016) (“Plaintiffs argue that out-of-state Plaintiffs ‘do not have to separately establish personal jurisdiction for each claim as though they were in a vacuum.’ . . . This Court does not agree.”).
Admittedly, the three cases discussed in this post present unique examples and do not permit much wiggle room to evade the thrust of BMS—especially in the drug and device sphere (after all, in how many states is a drug designed or components of a device manufactured?). But they all fail to address well recognized due process considerations that were not in play in BMS. That is, specific jurisdiction must be considered on a claim-by-claim basis. This is well recognized in the pre-BMS case law and should not be forgotten in the post-BMS landscape.