For as long as we’ve been practicing law, litigation tourists plaintiffs, from far and wide, have flocked to bring suit in the downstate Illinois counties of Madison and St. Clair, despite their claims having nothing to do with the state of Illinois. Yesterday, the Illinois Supreme Court – in Essure litigation – recognized that this practice is no longer permissible after the Supreme Court’s Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), personal jurisdiction decision. In Rios v. Bayer Corp., ___ N.E.3d ___, 2020 WL 2963318, slip op. (Ill. June 4, 2020), some 160 Madison County tourists from over thirty states were told to go home by the unanimous court.
Struggling to find something, anything, Illinois-related to hang their jurisdictional hats on, plaintiffs dredged up various purported “contacts” that had nothing to do with their cases: “clinical trials in Illinois,” us[ing] the state as a testing ground for [a] physician training program,” “orchestrat[ing] a marketing campaign in Illinois” – that kind of thing. Rios, 2020 WL 2963318, at *2. We knew this opinion was going to be good when the court dropped a footnote pointing out that different plaintiffs had tried the same thing in at least four other states. Id. at n.1 (citing Missouri, New Mexico, Indiana, and Pennsylvania as examples). Plaintiffs relied unsuccessfully on a pre-BMS intermediate appellate decision, M.M. ex rel. Meyers v. GlaxoSmithKline LLC, 61 N.E.3d 1026 (Ill. App. 2016) (our eighth worst case of 2016).
The Illinois Supreme Court was not distracted by either the factual smokescreen or the erroneous precedent. BMS sounded the death knell for Madison County litigation tourism. Even plaintiffs conceded that there was no “general” personal jurisdiction. Rios, 2020 WL 2963318, at *4. Then, BMS “foreclose[d] plaintiffs’ theory of specific personal jurisdiction.” 2020 WL 2963318, at *4. BMS:
chided the state supreme court for permitting the exercise of specific personal jurisdiction without identifying an adequate link between the state and the nonresidents’ claims. The drug was not prescribed to the nonresidents in [the state], they did not purchase it in [the state, and they were not injured by it in [the state]. The mere fact that other plaintiffs were prescribed, obtained, and ingested the drug in [the state] − and allegedly sustained the same injuries as did the nonresidents − does not allow the State to assert specific jurisdiction over the nonresidents’ claims.
Rios, 2020 WL 2963318, at *5 (BMS citations and quotation marks omitted). “[O]ut-of-state plaintiffs could pursue their claims elsewhere.” Id.
The purported “contacts” the Rios plaintiffs asserted had no particular connection to their individual cases. Rather, they were the same sort of generalized contacts rejected in BMS as creating a “loose and spurious” circus-mirror version of general jurisdiction. “[T]he question here is whether the nonresident plaintiffs’ claims arise out of, or relate to, those activities in any meaningful sense of the terms. We find that they do not.” 2020 WL 2963318, at *5. None of the plaintiffs alleged any particular way in which s/he was affected by the clinical trials, the physician training, or the marketing program.
Yet plaintiffs fail to allege that either they or their physicians received [any] false information in Illinois, and as noted, these plaintiffs and their physicians do not reside in this forum. . . . [T]he nonresident plaintiffs’ devices were not implanted in Illinois. And nothing in their complaints links [defendant’s] alleged failure to warn the nonresidents and their physicians to any activities that occurred or should have occurred in Illinois.
Id. at *5. “[T]he nonresident plaintiffs do not allege that [defendant] trained their physicians in Illinois, and again, the nonresidents’ devices were not implanted in Illinois.” Id. at *6. And, on a claim-by-claim analysis, as to manufacturing defects, “[c]onspicuously absent . . . is any assertion that their . . . devices were manufactured in Illinois or that [defendant] did, or should have, established manufacturing procedures in Illinois.” Id. at *5.
Those kind of generalized contacts, that any plaintiff from anywhere could just as easily allege, did not and could not establish specific personal jurisdiction for any individual plaintiff.
In short, the nonresident plaintiffs have identified no jurisdictionally relevant links between their claims and Illinois. Where no adequate link exists between Illinois and the nonresident plaintiffs’ claims, it necessarily follows that Illinois lacks specific personal jurisdiction over defendants as to those claims. For these reasons, we hold that plaintiffs failed to meet their burden of establishing a prima facie basis to exercise specific personal jurisdiction over defendants as to the nonresident plaintiffs’ claims.
Rios, 2020 WL 2963318, at *6. Plaintiffs, go home! Querentes ite domum! Or in more current jargon, practice extreme social distancing.
Nor was it “reasonable” for any state to allow non-resident plaintiffs from all over to flock into its courts the way they had to Madison and St. Claire (and other) Illinois counties.
These factors weigh strongly against Illinois courts exercising specific personal jurisdiction over defendants for the out-of-state plaintiffs’ claims. Illinois has no particular interest in resolving claims that did not arise out of or relate to activities that occurred here. Plaintiffs’ interest in obtaining relief also does not weigh in favor of Illinois courts’ exercise of specific personal jurisdiction as to non-Illinois plaintiffs. The nonresidents have not explained how Illinois could be a convenient location for this litigation when they were not implanted with their devices here and have identified no other activity that would connect their specific claims to Illinois.
Id. at *7. Indeed, “many” of these litigation tourists were double-dippers – they “initiated duplicate actions in California” – so that “the interests of judicial economy are not furthered.” Id.
In concluding, the Rios court administered a coup de grâce to the contrary M.M. decision – effectively erasing it from the law books. “We therefore hold that M.M. does not reflect the law in Illinois and should no longer be relied upon.” 2020 WL 2963318, at *7. “In sum, we conclude that the nonresident plaintiffs’ claims did not arise out of or relate to defendants’ in-state activities and, thus, Illinois courts lack specific personal jurisdiction over [defendant] as to the nonresidents’ claims.” Id.
Thus, the long litigation nightmare that has been perpetrated in Madison and St. Clair counties should now come to an end. Defendants – at least those who preserved jurisdictional objections – may now proceed to dismantle that unconstitutional system. As the Supreme Court has held, defendants are “permit[ted] . . . ‘to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.’” Daimler AG v. Bauman, 571 U.S. 117, 139 (2014) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). Defendants don’t have to expose themselves to the jurisdictions on ATRA’s list. Even as to manufacturing defect claims, as long as potential litigation targets take their business to more business-friendly states, they can’t be sued by litigation tourists, except in those more congenial jurisdictions.