Back in 2018, upon reading the bad general jurisdiction by consent decision, Webb-Benjamin, LLC v. International Rug Group, LLC, 192 A.3d 1133 (Pa. Super. 2018), and the worse Hammons v. Ethicon, Inc., 190 A.3d 1248 (Pa. Super. 2018), “specific” (we use that term advisedly) jurisdiction case a few months later, we commented that it appeared that the Commonwealth of Pennsylvania was going off the personal jurisdiction “deep end.”
Following up on that metaphor, the Pennsylvania Supreme Court’s recent affirmance in Hammons v. Ethicon, Inc., ___ A.3d ___, 2020 WL 6155256 (Pa. Oct. 21, 2020), was the jurisprudential equivalent of yelling “Cannonball!” while diving into the aforementioned jurisdictional deep end. Hammons not only concluded that the Supreme Court was all wet in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”) (opting instead for Justice Sotomayor’s lone dissent), but also added yet another burden to Pennsylvania’s struggling manufacturing sector, since the only way for a defendant to avoid the burgeoning Pennsylvania mass tort Mecca is to avoid doing business with anyone in the Commonwealth. After listening to the oral argument on PCNTV, we were unhappy, but not particularly surprised, by this outcome.
That said, Hammons in the Pennsylvania Supreme Court was still marginally better than the “appallingly bad” intermediate appellate decision that it mostly affirmed.
The plaintiff in Hammons was a Pelvic Mesh litigation tourist from Indiana, with her surgery and claimed injuries occurring in Indiana. She has no contacts at all with Pennsylvania other than eventually hiring a Philadelphia lawyer. 2020 WL 6155256, at *1. Thus, she lacks any of the in-state “adequate links” recognized by the Supreme Court in BMS:
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. . . .
137 S. Ct. at 1781. Absent such forum-based facts, “a corporation’s continuous activity of some sorts within a state . . . is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.” Id. (citation and quotation marks omitted). “What is needed . . . is a connection between the forum and the specific claims at issue.” Id. What was not enough to establish specific personal jurisdiction in BMS? “The bare fact that [defendant] contracted with a [forum] distributor is not enough to establish personal jurisdiction in the State.” 137 S. Ct. at 1783.
Hammons’s analysis started out with what can only be described as poking the BMS decision in the eye with a sharp stick. While that decision was 8-1, Hammons chose to quote and follow, instead, the lone dissent:
As Justice Sotomayor cited in her dissenting opinion in BMS, a preeminent treatise on federal practice and procedure observed that courts have synthesized the specific personal jurisdiction caselaw into a more manageable three-part test:
(1) Did the plaintiff’s cause of action arise out of or relate to the out-of-state defendant’s forum-related contacts?
(2) Did the defendant purposely direct its activities, particularly as they relate to the plaintiff’s cause of action, toward the forum state or did the defendant purposely avail itself of the privilege of conducting activities therein?
(3) [W]ould the exercise of personal jurisdiction over the nonresident defendant in the forum state satisfy the requirement that it be reasonable and fair?
2020 WL 6155256, at *15 (quoting BMS, 137 S.Ct. at 1785 (Sotomayor, J. dissenting) (internal citations omitted)). We’ve been practicing law a long time, and to see an appellate court begin a legal discussion relying on a lone dissent to an otherwise controlling decision is a new one on us – and also a harbinger of things to come. Hammons then reviewed the majority decision in BMS, focusing on other facts that the Supreme Court had observed were absent. “Moreover, the company did not develop, manufacture, label, package, or work on the regulatory approval of the product in California, nor did it devise its national marketing strategy in the state.” 2020 WL 6155256, at *16 (BMS citation and quotation omitted). Hammons then mentioned the BMS holdings rejecting a “sliding scale” as a “loose and spurious form of general jurisdiction,” denying “the relevance of the overlap between the claims of the [forum] and non-[forum] plaintiffs,” and requiring “a connection between the forum and the specific claims at issue.” Id. (BMS citations and quotations again omitted).
Then it was back to what Hammons described as the “lone but forceful dissent” in BMS, id. at *17, which:
asserted that the [majority] decision, while claiming to apply established precedent, actually resulted in a dramatic shift. [The dissent] feared that the holding would make it impossible to bring a nationwide mass action in state court against defendants who are ‘at home’ in different States. [The dissent] argued that there was nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike. [The dissent] instead opined that permitting the nonresidents to bring suit in California alongside the residents facilitates the efficient adjudication of the residents’ claims and allows it to regulate more effectively the conduct of both nonresident corporations.
Id. (BMS citations and quotations again omitted).
Thus Hammons expressly chose to disregard the Supreme Court’s holding in BMS that “[w]hat is needed − and what is missing here − is a connection between the forum and the specific claims at issue.” 137 S. Ct. at 1781.
While language focusing on the term “specific claims” can be excerpted from the BMS decision to support [the defendant’s] reading, we are hesitant to conclude that the Court dramatically narrowed the construct of specific personal jurisdiction to require a claim-by-claim analysis sub silentio.
Hammons, 2020 WL 6155256, at *17. Hammons professed to find support for this view in Walden v. Fiore, 571 U.S. 277 (2014), which it described as “look[ing] not to the elements of each individual claim for purpose of specific personal jurisdiction but rather “focuse[d] on the relationship among the defendant, the forum, and the litigation.” 2020 WL 6155256, at *17 (quoting Walden, 571 U.S. at 284). That’s not at all what Walden was about. The main holding in Walden was that only a defendant’s “suit-related conduct,” not its relationship with some in-state third party, can support specific personal jurisdiction:
For a State to exercise jurisdiction consistent with due process, the defendant’s suit-related conduct must create a substantial connection with the forum State. . . . First, the relationship must arise out of contacts that the “defendant himself ” creates with the forum State. Second, our “minimum contacts” analysis looks to the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.
Walden, 571 U.S. 284-85 (citations and quotation marks omitted) (emphasis added). The snippet Hammons quoted from Walden was prefatory, a quote dating back to Shaffer v. Heitner, 433 U.S. 186, 204 (1977), and was not part of the rationale supporting the actual holding in Walden.
Instead of the result in BMS, or its emphatic rejection of specific jurisdictional arguments that sought to create “loose and spurious form[s] of general jurisdiction,” Hammons treated BMS as no big deal – simply “rel[ying] upon [the Supreme Court’s] prior phrasings of specific personal jurisdiction,” “terminology invokes not merely connections to ‘specific claims’ but broader links between the defendant and the ‘suit’ or the ‘controversy.’” 2020 WL 6155256, at *17. Relying entirely on this “broader terminology,” expressed in “concepts of ‘suit,’ ‘controversy,’ and ‘litigation’ as opposed to individual ‘claims,’” Hammons “agree[d] that the focus of the jurisdictional question should be the actions of the defendant in relation to the forum” rather than what the plaintiff actually sued about. Id. “[A]bsent further clarification from the High Court, we decline to restrict jurisdiction by focusing narrowly on the elements of plaintiff’s specific legal claims, which could unnecessarily restrict access to justice for plaintiffs.” Id. at *18 (footnote omitted).
And with that sleight of hand – ignoring everything that distinguished BMS from prior Supreme Court jurisdictional decisions − Hammons proceeded to create precisely the sort of “loose and spurious form of general jurisdiction” that the Supreme Court had condemned in BMS. Instead of considering anything having to do with the plaintiff herself, the Hammons decision looked solely to the defendant’s overall contacts with Pennsylvania – focusing on contacts that any plaintiff from anywhere in the country could equally well assert. Likewise, Hammons’s result flew in the face of what Walden required – analysis of “the defendant’s contacts with the forum State itself, not the defendant’s contacts with persons who reside there.” 571 U.S. at 285.
All of these contacts concerned the defendant having contracted to have the mesh component of the device knitted together by an independent contractor located in Pennsylvania. Id. at *19-20. None of the contractor’s actions had been a point of contention at trial – which did not even pursue a manufacturing defect claim – but rather, this contractor had been held immune from suit under the federal Biomaterials Access Assurance Act. Hammons, 2020 WL 6155256, at *4. Thus, this Pennsylvania entity had no more ties to the matter at suit than the aforementioned in-state distributor in BMS whose actions the Supreme Court had held to be insufficient in that case. 137 S. Ct. at 1783. Unwilling to “restrict” the “access” of any plaintiff anywhere in America to a Pennsylvania courthouse, Hammons held that a defendant’s supervision of its non-liable independent contractor, alone, was sufficient to establish specific personal jurisdiction:
[Defendant] was substantially and directly involved in the production of the mesh in Pennsylvania, where the mesh was what [plaintiff] asserted caused her injuries and which served as the critical factual component of each of [plaintiff’s] claims. . . . [Defendant] was involved in the production of the mesh by [the contractor] in Pennsylvania, and [plaintiff] claimed her injuries resulted from that mesh. Thus, there is a direct connection between [plaintiff’s] cause of action and [defendant’s] actions in Pennsylvania.
2020 WL 6155256, at *20 (footnote omitted).
We note that the relationship found sufficient in Hammons was only to the “cause of action,” interpreted broadly as anything conceivably having to do with the product in general – not even the majority in Hammons could plausibly argue that there was any connection to the plaintiff’s “specific claims,” as BMS had required. It would not be “unfair,” Hammons declared, “to subject [defendant] to jurisdiction here given that it is already litigating the related claims brought by Pennsylvania Plaintiffs.” Id. But, once again, coincident claims by in-state residents is precisely what the United States Supreme Court had held was insufficient in BMS to support specific jurisdiction.
Overall, Hammons, with its heavy reliance on a lone dissent and its explicit disregard for the Supreme Court’s “specific claims” language in BMS can only be viewed as a calculated challenge to that decision’s ultimate holding that aggregation of mass torts in far-flung venues constitutes a jurisdictional overreach that violates Due Process. 137 S. Ct. at 1783-84 (aggregation only permissible where “general jurisdiction” exists). Where have we seen this kind of thing before? We’re not old enough to recall civil rights cases from the 1960s, but Hammons reminds us of the First Circuit’s flat refusal to follow Mensing in the Bartlett litigation, which we described here. We fully expect the defendants in Hammons (like the defendant in Bartlett) to “Take It Up” to the Supreme Court, where an 8-1 majority decided BMS only three years ago. We can only hope that the High Court doesn’t suffer from personal jurisdiction fatigue.
Moreover, as to “fairness” – what about fairness to the residents of Philadelphia (which include some of us bloggers), who are forced to sit on juries, have their tax dollars expended, and have their access to their own courts delayed, by out-of-state residents who are perfectly able to seek relief in their home-state’s courts? Apparently, we don’t count as much as litigation tourists with dollar signs in their eyes. So, when COVID-19 restrictions on civil jury trials are eventually lifted, Philadelphia residents will have to compete in a backlogged system with plaintiffs from other states to have their disputes adjudicated. What about our “access to justice”?
End of personal rant.
In our own spirit of fairness, however, we also point out that, as adverse as Hammons is, it is still not as bad as the decision it affirmed, which we criticized here. The Pennsylvania Supreme Court at least got the burden of proof issue correct – holding, contrary to the unprecedented result below, that defendants were not required to disprove assertions of jurisdiction against them:
Pennsylvania courts have repeatedly opined in addressing a defendant’s challenge to personal jurisdiction that the burden is first on the defendant, as the moving party, to object to jurisdiction; once raised by a defendant, the burden of establishing personal jurisdiction under Pennsylvania’s long arm statute is placed on the plaintiff asserting jurisdiction. The defendant can respond by demonstrating that the imposition of jurisdiction would be unfair. We recognize that this practice is consistent with federal jurisprudence.
Finally, while we’re on the general subject, the other jurisdictional “deep end” issue we discussed in our prior posts, general jurisdiction by consent, is now also headed for the Pennsylvania Supreme Court. We previously discussed Mallory v. Norfolk Southern Railway Co., 2018 WL 3025283 (Pa. C.P Philadelphia Co. May 30, 2018), which declared the Pennsylvania Long Arm statute unconstitutional because it allowed such jurisdiction contrary to Daimler AG v. Bauman, 571 U.S. 117 (2014). Mallory has been on appeal, and was recently (10/30/2020) transferred to the Pennsylvania Supreme Court, pursuant to 42 Pa. C.S. §5103(a), since that court has exclusive appellate jurisdiction in such situations.