Thanks to our friend Adam Masin for sending us today’s hot-off-the-presses case, and a shout-out to Adam and his colleague Nancy Kelly, both of Gordon Rees Scully Mansukhani, for the great result.  We’ll get to that in a moment.

First, we ask your indulgence as we report that our baby is leaving the nest this week.  No, not the Drug and Device Law Rock Climber – she is fully launched (even off of our phone plan).  We refer to our gorgeous standard poodle puppy, Luca, now seven months old, whom blog readers have known since he was in utero.  We drop him off this Sunday to his show handler, who will have him on the show circuit for the next few months, until he finishes his AKC championship.  (We already have plane tickets and hotel reservations to see him in the “6- to 9-month puppy” class at the Poodle Club of America National Specialty Show , next month in Missouri.)  This was part of the deal when we got him, and we knew it was coming, and we are beyond excited for this next phase.  But we can’t deny that a piece of our heart is going with him, along with the giant stuffed Lamb Chop toy he carries all around the house and brings into bed. Watch this space for updates on Luca’s show career, and cross your fingers for his success and quick return home. 

Back to today’s case.  Rivers v. Nice Recovery Systems LLC, et al., 2023 WL 2525209 (D.R.I. Mar. 15, 2023), is a smart, sensible, and correct personal jurisdiction decision with implications for all of us who represent manufacturers of prescription drugs and medical devices.  In Rivers, the plaintiff alleged that he was injured by a cold compression system prescribed for him after bunion surgery.  He sued in the District of Rhode Island, asserting the usual litany of product liability claims and naming a list of defendants that included the device’s manufacturer, a distributor with which the manufacturer contracted to market and distribute the device, and (significantly) the doctor who prescribed the device for the plaintiff.  The manufacturer moved to dismiss the claim for lack personal jurisdiction, and the plaintiff was granted leave to conduct limited jurisdictional discovery.  Here are the relevant jurisdictional facts:

The manufacturer/movant is a Delaware company “with its principal place of business, sole office, and manufacturing facility in Colorado.  It does not have any operations, locations, or employees in Rhode Island.”  Rivers, 2023 WL 2525209 at *1.  The manufacturer does business with a Connecticut distributor that distributes the products in the six New England states (including Rhode Island) along with New York and New Jersey.  As the court emphasized, there was “no evidence that [the manufacturer] directed [the distributor’s] marketing practices in Rhode Island or itself took part in any” at any time relevant to the plaintiff’s claims.  Id.   The only defendants with Rhode Island presences are the prescribing doctor and his medical practice.  The plaintiff, a Massachusetts resident, traveled to Rhode Island to see the defendant doctor for pain in his big toe.  The doctor diagnosed bunions, recommended surgery (later performed in Massachusetts) and prescribed the defendant’s cold compression device for use after surgery.

As the court explained, “the Supreme Court recognizes two kinds of personal jurisdiction: general (sometimes called all-purpose) and specific (sometimes called case-linked) jurisdiction.”  Id. at *3 (internal punctuation and citations omitted).  The plaintiff conceded that Rhode Island could not exercise general jurisdiction over the manufacturer, so the arguments and analysis addressed only specific jurisdiction.  In Rhode Island, the relevant framework includes three categories:  1) relatedness (the claim directly arises out of or relates to the defendant’s forum-state activities); 2) purposeful availment (the defendant’s contacts with the forum state represent a purposeful availment of the privilege of conducting activities in the state); and 3) reasonableness (the exercise of jurisdiction is ultimately reasonable).  “Failure to make any one of these [three] showings dooms any effort to establish specific personal jurisdiction.”  Id. (citations omitted). 

The court began its analysis with the “relatedness” prong, citing the SCOTUS’s BMS decision for the proposition that, for a plaintiff’s causes of action to “arise out of or relate to” a defendant’s forum conduct, “there must be an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.”  Id. (internal punctuation and citation to BMS omitted).  The court emphasized that, although this is a “flexible, relaxed standard,” the court may not exercise specific personal jurisdiction “where the connection between the cause of action and the defendant’s forum-state contacts seems attenuated and indirect.”  Id. (citations omitted).  In other words, “the defendant’s in-state conduct must form an important, or at least material, element of proof in the plaintiff’s case.”  Id. (internal punctuation and citations omitted).  In Rivers, the plaintiff was a Massachusetts resident who used the product and sustained his injury in Massachusetts, not Rhode Island.  The product was designed and manufactured in Colorado, not Rhode Island.  “Indeed,” the court stated, “it [was] very likely that the product never entered Rhode Island.”  Id. at *4.

The only connection to Rhode Island was the fact that the plaintiff’s doctor prescribed the device during a pre-surgery visit in Rhode Island.  The plaintiff, not the manufacturer defendant, created that contact.  (The plaintiff filled the prescription in Massachusetts.).  Even if the plaintiff had to come to Rhode Island to obtain jurisdiction over the doctor, he was still a litigation tourist from the perspective of jurisdiction over the manufacturer.  The court held, “[t]his Rhode Island contact is not an important or material element of proof of the plaintiff’s claims against [the moving defendant] and it is attenuated and indirect connection between Rhode Island and the litigation.”  Id. (citation omitted).  “In other words,” the court concluded, “there is not an adequate link between [the moving defendant’s (indirect) contacts with the forum (Rhode Island) and the litigation (the plaintiff’s specific claims against [the moving defendant] to satisfy the relatedness factor.”  Id. (citation omitted). 

The court noted that much of the argument and the jurisdictional discovery focused on the “purposeful availment” and “reasonableness” prongs; however, because the plaintiff not satisfied the relatedness factor, the court did not need to consider the remaining factors.  Motion to dismiss granted (without prejudice, because it was on jurisdictional grounds).

Rivers is important, with potential implications anytime a plaintiff was prescribed a drug or device in one state but used it (and claimed to suffer injury) in another state.  Plaintiffs who obtain health care from out-of-state doctors cannot claim their prescriptions as in-state jurisdictional contacts.  We love decisions that limit forum shopping on tenuous jurisdictional grounds, and Rivers is squarely in that category.  We’ll keep you posted on further developments. In the meantime, stay safe out there, and root for Luca!