With a little luck on our part, by the time you read this we will be vacationing in a sunnier clime. Our beachfront cottage is an Oddjob’s hat-toss away from where Ian Fleming wrote the James Bond novels. Mind you, we are not pretending to be serving On Her Majesty’s Secret Service. If anything, with the secluded location of our holiday, the absurd luxury, and our ever-expanding girth, we are more appropriately cast as a Bond villain. That suits us just fine. More than one plaintiff lawyer has called us Dr. No. And more than once, we have reached under our desk, probing for a trap-door button that would plunge an opponent into the piranha pool.
The judge in today’s case, Livingston v. Hoffman-LaRoche Inc., No. 17C-7650-MEA (N.D. Ill. March 7, 2018), pushed the button, holding that there was no personal jurisdiction. Livingston was yet another Accutane case, with allegations of bowel injury. We have written frequently on the aggregated forms of this litigation in both the federal and New Jersey court systems. The Livingston case is different. To be sure, the Livingston opinion last week was largely an obvious application of the SCOTUS Bauman and BMS cases, but there was a scary threat lurking just off-stage. More on that later. Moreover, anything good on jurisdiction from Illinois is noteworthy.
The history of the Livingston case is more complicated than the plot of The World is Not Enough. The case was originally filed in Cook County, Illinois – a fabulous pro-plaintiff jurisdiction. The case was then removed. Then it was remanded — nine years ago. The case sat in state court with little happening. The generics got out on Pliva v. Mensing in the meantime, but by then the branded defendant could no longer remove the case because of the one-year bar. Then the plaintiff lawyers did the defense a great favor (not the last) by taking their one dismissal in Illinois, which allowed them to refile within a year. The plaintiff eventually did refile in Cook County, and the branded defendant removed. That’s the case in our sights today. The case was initially assigned to a different judge, but then it got reassigned to the same federal judge who remanded a long time ago. The defendant would have been entitled to view that as a bad sign. But it wasn’t.
It is thus no surprise that the branded defendant moved to dismiss for lack of personal jurisdiction. The plaintiff filed no opposition. The Livingston court references a reply brief filed by the defendant. Presumably, that reply brief was one of those short, triumphal papers pointing out that the plaintiff’s silence amounts to a concession, so a ruling for the defendant should be compulsory and easy. And, in fact, the dismissal for want of personal jurisdiction was compulsory and easy. We’ve seen a report on this case in one of the major online legal publications, and for some reason that report focused on general jurisdiction. That aspect of the decision is certainly the least interesting part. The manufacturer of Accutane was not incorporated in Illinois and did not locate its headquarters there. To our mind, Bauman makes that a no-brainer.
But there is one additional, potentially interesting aspect of this opinion. The physician who prescribed the generic version of the drug was, in fact, a citizen of Illinois. Again, the court regarded this as a big fat So-what: “The claim against the local doctor did not mention the manufacturer of Accutane, involved the generic product only, “comprises different time periods, and entails different injuries.” Swell. But we must admit that as we read the final portion of the Livingston opinion, we were haunted by a spectre. It is very, very nice that the bottom line of Livingston is that the prescription of a generic drug in Illinois did not create personal jurisdiction over the brand defendant. For a moment, though, a terrible dread wormed its way into our brain-pan. We alluded above to the fact that Illinois is the home of some awful personal jurisdiction opinions. Illinois has also been crazy-bad on the issue of innovator liability. One might have feared that an Illinois court might contrive to find a way to merge innovator liability with the “arise out of”/”related to” prong of specific jurisdiction and thereby keep the case in Illinois. If a branded company can be on the hook for injury allegedly caused by a generic, why not require the branded company come to the forum where the generic was consumed. An utterly crazy syllogism is at work there. But Illinois is the one jurisdiction batty enough (well, along with California) to throw out all of tort and jurisdictional law on grounds of foreseeability and misplaced judicial compassion. Such an outrageous opinion would have made the judicial sky fall. Mercifully, that did not happen in the Livingston case. Indeed, now defendants have a precedent to argue that it never should.
We offer a tip of the cyber-cap to the winning lawyers, a defense all-star team including longtime friend-of-the-blog Michael Imbroscio (Covington), as well as Colleen Hennessey (Peabody), and Sherri Arrigo (Donohue Brown).