Talk to any realtor and they’ll tell you location is the key to any home search.  And normally when we rail against litigation tourists, location is pretty key to us too.  Plaintiffs can’t forum shop for “judicial hellholes” that have no relation to them or to the defendant.  So, you’ve probably heard us say plaintiffs can, and often should, bring their cases in their home states.  But occasionally, even that is not enough for personal jurisdiction.  That was the case in Brandon v. Wright Medical Technologies, Inc., 2021 WL 3134658 (D. Nev. Jul. 23, 2021).

At the time plaintiff filed her lawsuit she lived in Nevada and had for the last four years.  Prior to that she resided in California.  While living in California, plaintiff underwent hip replacement surgery during which defendant’s prosthetic hip device was implanted.  Plaintiff lived in California for another five years after her surgery.  After moving to Nevada, plaintiff had bloodwork done after which she had revision surgery to explant the device.  The explant surgery took place in California.  Id. at *1.    Defendant challenged personal jurisdiction in Nevada.

On general jurisdiction plaintiff could only allege that defendant sold thousands of devices in Nevada.  But nationwide sales are not enough to make a defendant “at home” in a jurisdiction. So, there was no general jurisdiction here.  Id. at *2.

The Ninth Circuit’s test for specific personal jurisdiction puts the burden on plaintiff to demonstrate that defendant purposefully availed itself of the privilege of conducting business in the state and that plaintiff’s claims “arise out of” or “relate to” the defendant’s forum-related activities.  Id. at *3.  If plaintiff meets her burden, then defendant must demonstrate that the exercise of jurisdiction would not be reasonable.  Id.  Plaintiff did not meet her burden on either of the first two parts of the test.

Purposeful availment does not mean simply putting a product into the stream of commerce. Id.  Nor was it sufficient for plaintiff to allege that defendant “transacted business” in Nevada.  To meet her burden, plaintiff needed to show that defendant designed the product for the Nevada market, advertised in Nevada, or had a distributor or sales agent in Nevada.  While the court could reasonably assume that a seller of “sophisticated medical devices” did some of these things, plaintiff did not allege them.  Id.

If that had been plaintiff’s only problem, perhaps it could have been cured through amended pleadings or some limited discovery.  But plaintiff failed prong two of the specific jurisdiction test as well.  Plaintiff could not demonstrate that her claims arose out of or were related to defendant’s contacts with the state, assuming they existed.  “[W]ithout [defendant’s] contacts with Nevada, Plaintiff would have still suffered her alleged injuries because she had surgery in California.”  Id. at *4.  The fact that plaintiff spent two years in Nevada with the device still implanted, while foreseeable, was a “unilateral act of a third party, lacking any direct connection between [defendant] and Nevada.”  Id.

The court distinguish the present case from the facts in Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021).  There, plaintiffs may have bought their cars elsewhere, but their connection to the forum state went beyond simply residing there.  They used their cars in the forum states and suffered their injuries in their forum states.  Here, plaintiff had surgery in California, lived with the allegedly defective implant for five years in California, and returned to California for her explant surgery.  So not only did defendant have systematic contacts with Nevada, but plaintiff’s connection to Nevada regarding her claims is also weak.  “Jurisdiction is lacking without an affiliation between the specific controversy and the forum.”  Id.  Plaintiff does not have that here.  So even if the plaintiff is a state resident, jurisdiction still fails if everything concerning the product occurred in other states.