Last year, we posted about Pennsylvania going off the personal jurisdictional “deep end” in Hammons v. Ethicon, Inc., 190 A.3d 1248 (Pa. Super. 2018), and Webb-Benjamin, LLC v. International Rug Group, LLC, 192 A.3d 1133 (Pa. Super. 2018). Well, unfortunately they’re still at it, and we’re afraid that the result could well be a lot like the Missouri talc cases, or a bunch of California mass torts – a lot of futile trial activity eventually coming to naught because the trial courts never had jurisdiction to start with.
But maybe not. Here’s a ray of hope. Last Wednesday, the Pennsylvania Supreme Court agreed to hear an appeal in the Hammons case. So whether or not it ultimately takes the United States Supreme Court to straighten Pennsylvania out, the Pennsylvania Supreme Court will have the first opportunity to set things right – which is as it should be.
Today’s decision, In Re: Pelvic Mesh Litigation, Appeal of Ethicon, Inc. & Johnson & Johnson, 2019 WL 1486697 (Pa. Super. April 3, 2019), is – and richly deserves to be – one of the last uncitable, unpublished memorandum decisions issued by the Pennsylvania Superior Court. On May 1, 2019, new Pa. R.A.P. 126 becomes effective, and thereafter unpublished Pa. Super. memorandum decisions, while still non-precedential, will at least be citable. Thankfully, Pelvic Mesh falls under the old rule.
Briefly Pelvic Mesh takes Hammons’ wrong-headed approach to post-BMS specific (“case-linked”) personal jurisdiction and applies it to the entire mesh mass tort pending in the Philadelphia Court of Common Pleas. Once again, the court fails to rely on case specific evidence. Nowhere in the opinion do we know the names, circumstances, or even the number of so-called “non-resident plaintiffs” whose jurisdictional cases are to be adjudicated. What was lacking in BMS? The Supreme Court told us:
The State Supreme Court found that specific jurisdiction was present without identifying any adequate link between the State and the nonresidents’ claims. As noted, the nonresidents were not prescribed [the product] in California, did not purchase [the product] in California, did not ingest [the product] in California, and were not injured by [the product] in California. . . . Nor is it sufficient − or even relevant − that [defendant] conducted research in California on matters unrelated to [the product]. What is needed − and what is missing here − is a connection between the forum and the specific claims at issue.
Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1781 (2017) (emphasis added). In BMS the lower courts had erred by not basing their analysis on the “specific” contacts of the plaintiffs, and instead relying on generalized evidence – including the defendant’s relationship (as here) with a third-party in-state corporate defendant:
[T]he requirements of [personal jurisdiction] must be met as to each defendant over whom a state court exercises jurisdiction. . . . [T]he nonresidents have adduced no evidence to show how or by whom the [product] they took was distributed [and] dispensed  to them.” The bare fact that [defendant] contracted with a [resident] distributor is not enough to establish personal jurisdiction in the State.
Id. at 1783.
As in BMS, the Pennsylvania Superior Court in Pelvic Mesh is creating another “a loose and spurious form of general jurisdiction,” id. at 1781, specifically, a product-related version of “continuous and substantial” contacts with Pennsylvania, but lacking the critical “at home” element. Any and all plaintiffs in the Pelvic Mesh mass tort, no matter where they reside, and no matter where they “were implanted with one of the [defendants’] eight pelvic mesh devices,” 2019 WL 1486697, at *6, are allowed to establish specific personal jurisdiction based on identical facts:
[Defendant’s] direct oversight of the knitting of the mesh in Pennsylvania, coupled with its reliance on clinical studies performed by a Pennsylvania gynecologist, is sufficient to bring [it] within the jurisdiction of this Commonwealth.
However, those aren’t plaintiff-specific facts. Those facts aren’t unique to any plaintiff. Instead, they are what the Pelvic Mesh court believed to be sufficiently substantial facts connecting the eight mesh products generally to the Commonwealth of Pennsylvania, no matter who the plaintiff happens to be. Thus, as in BMS, the Pelvic Mesh court created “a loose and spurious form of general jurisdiction” that is woefully insufficient to establish either general or specific jurisdiction. Under BMS, having an in-state distributor is insufficient, unless the plaintiff used a product so distributed. 137 S. Ct. at 1783. Other general in-state contacts (conducting research) are not “even relevant.” Id. at 1781. See also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 927 (2011) (rejecting jurisdictional analysis that “elided the essential difference between case-specific and all-purpose (general) jurisdiction”).
“[T]he suit must arise out of or relate to the defendant’s contacts with the forum.” BMS, 137 S. Ct. at 1780 (citation and quotation marks omitted). The facts necessary to establish “case linked” jurisdiction, as BMS made clear, are those creating “the specific claims at issue,” id. at 1781, not what a defendant generally does concerning a product. These non-Pennsylvania plaintiffs, like the non-Californians in BMS, “were not prescribed,” “did not purchase,” “did not ingest” and “were not injured” in Pennsylvania by the product as to which they are seeking compensation.
Those plaintiffs established nothing more than routine business relationships with anyone in Pennsylvania. Cf. Vaughan v. Olympus America, Inc., ___ A.3d ___, 2019 WL 1549345, at *5 (Pa. Super. April 10, 2019) (conceded “agency relationship” with two subsidiaries having their principal places of business (and thus “at home”) in Pennsylvania). “[S]pecific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction. ” BMS, 137 S. Ct. at 1781. So what if the defendants interacted with a couple of Pennsylvania third parties who had no contact whatever with the plaintiffs. Those contacts flunk the BMS test.
General jurisdiction involves general (“continuous and substantial”) contacts – such that the defendant is “at home” where suit is brought. Specific jurisdiction involves specific (“case linked”) contacts that connect the plaintiff’s particular case with the forum. In most cases, it is that simple. The jurisdictional mash-up that Pennsylvania courts have so-far created ultimately proves neither. As in BMS, “the connection between the nonresidents’ claims and the forum [here] is even weaker. The relevant plaintiffs are not [Pennsylvania] residents and do not claim to have suffered harm in that State.” Id. at 1872.
As did the California courts, and the Missouri lower courts, it might well take a lot of litigation sound and fury signifying nothing before would-be mass-tort plaintiffs’ last, best hopes are ultimately brought to heel. It may (or may not, if the Pennsylvania Supreme Court does the right thing) take another United States Supreme Court case, or even two, but eventually Pennsylvania will follow the same constitutional personal jurisdiction standards as the rest of the country.