When we started seeing a smattering of cases over long-term contraceptive devices used in connection with tubal ligation surgery, we were not surprised. Plaintiff lawyers have targeted a wide range of contraceptive drugs and devices for decades. Commentators beyond this Blog have described how this bent affects contraceptive choice and public health. When we saw the results of decisions on motions to dismiss these cases out of federal courts in Alabama and North Carolina, we were pleased to see that claims against these Class III devices were preempted. They came with the bonus that some of the standard arguments for specific personal jurisdiction over parent companies were rejected.
The recent decision in Blevins-Ellington v. CooperSurgical, Inc., No. 1:22-CV-00197-LMM, 2023 WL 2111346 (N.D. Ga. Jan. 17, 2023), however, left us scratching our heads. It actually came out between the two district court decisions above and was rejected by the later one. Focusing just on its rulings on personal jurisdiction and preemption, Blevins-Ellington leaves quite a bit to be desired. The facts it sets out are scant, starting with why the claims of three different plaintiffs (plus a consortium plaintiff) are together in one case. Plaintiffs alleged that they had these contraceptive devices implanted between 2011 and 2013 (presumably in Georgia), and later suffered some combination of a wide range of symptoms that they attributed to “migration” of the device. Three of the four defendants appear to have been parent or affiliated companies of the fourth company, which is the one that sold the devices plaintiffs had implanted. Pertinent to our discussion here, those three sought dismissal on personal jurisdiction and all four sought dismissal based on preemption.
The playing field for personal jurisdiction has changed quite a bit over the last nine years. In the same month in 2014, the Supreme Court issued the Bauman decision on general personal jurisdiction and the Walden case on specific personal jurisdiction. Bauman was a sea change in how it narrowed general personal jurisdiction to one or two states for pretty much every defendant and made clear that parent companies were not necessarily subject to the same personal jurisdiction as their subsidiaries. See here, here, and here, among many posts on the subject. Walden focused the need for a claim-by-claim analysis of the relationship between the allegedly actionable conduct and the defendant’s contact with the state seeking to exercise personal jurisdiction over it. In the coming years, the battleground shifted to attempts by the plaintiffs’ bar to expand specific personal jurisdiction so that it would be as broad as general personal jurisdiction used to be, broad enough to allow the continuation of the litigation tourism industry. The Supreme Court pretty much put the kibosh on this in 2017 in its Bristol-Myers Squibb decision. The application of specific personal jurisdiction remained a bit unclear, so the Supreme Court weighed in on the “related to” requirement in Ford v. Montana in 2021. In terms of the Supreme Court, four decisions on personal jurisdiction in less than seven years is a veritable flurry of activity.
It would be nigh on impossible to decide a personal jurisdiction challenge in 2023 without citing any of these decisions. Of these, Blevins-Ellington cites Bauman only, but plaintiffs agreed general personal jurisdiction did not apply to any of the defendants. In deciding specific personal jurisdiction, it relied almost exclusively on pre-Bauman/Walden authority, much of which is probably not good law anymore. It is hard to get the analysis right when you apply the wrong standard. As to one defendant, the court looked solely to whether plaintiffs’ claims “arise out of or relate to” contacts with Georgia that began in 2019, even though the implants were in 2011 to 2013. That should not pass the smell test, but the court did not analyze (sniff?) as to each claim by each plaintiff. Instead, without considering any substantive Georgia law, the court found that the claims for “negligence, gross negligence, and consumer protection law violations for deceptive conduct relating to the marketing and promotion” bestowed jurisdiction over the whole case because the defendant began its forum contacts “before Plaintiffs discovered their injuries resulting from the” device. 2023 WL 2111346, *6. But BMS and Walden both hold that a plaintiff’s actions cannot qualify as a defendant’s contacts. The Blevins-Ellington court doubled down on the faulty reasoning about post-implant conduct with the conclusion that recent online advertising constituted purposeful availment in Georgia that related to plaintiff’s claims, which concern misleading promotions about [the device’s] safety.” Id. at *7. (Stick a pin in that last clause for later.)
As to two other defendants, plaintiffs were allowed to seek jurisdictional discovery. As to one defendant, the discovery is directed at whether it was the alter ego of the entity with actual relevant contacts to Georgia. As to other, a UK company, the discovery apparently relates to the extent of its contacts with Georgia. The court’s focus on what plaintiffs claim the UK company did not dispute—including that it profited from sales in Georgia and it did not “prevent its products from reaching Georgia”—suggest a continuing misunderstanding of the current law on specific personal jurisdiction. Id. at *10.
The preemption analysis was also flawed. Because this is a Class III device, the only claims that should get by preemption are those grounded in state law that are parallel to requirements imposed by federal law. The court’s recitation of preemption law, which was largely based on the good Eleventh Circuit decision in Mink, identified the “narrow gap” between express preemption under Riegel and implied preemption under Buckman. The first step in the analysis should have been identifying which cognizable state law claims had been pleaded based on factual allegations (under TwIqbal). In Blevins-Ellington, the only Georgia law considered was it permitting “negligence and strict liability claims against manufacturers, which rest on common law duties owed to individuals.” Id. at *13. That is very general and not a substitute for the claim-by-claim analysis that should have occurred. (There was nothing like an Erie prediction undertaken on would have involved extensions of state law.) The claim-by-claim analysis should have also considered whether those state law claims imposed duties “different than or in addition to” requirements imposed by federal law through the PMA approval of the device. That analysis was also missing. Instead the court found in general terms that plaintiffs sought to “hold Defendants liable for violations of existing federal requirements.” Id. at *14
Here, Plaintiffs specifically allege that Defendants violated FDA requirements regarding their ongoing duty to report to the FDA; their duty of truthfulness to the FDA and the obligation to receive FDA approval for any changes to the device; and their failure to comply with FDA manufacturing regulations. These allegations are sufficiently specific to avoid preemption, especially at this stage of litigation and without the benefit of discovery.
Id. (internal citation omitted). Of these, only the one about manufacturing would be a duty under Georgia law, a requirement for a parallel claim. Whether three separate plaintiffs had each properly alleged a manufacturing defect—that is, a unit-specific deviation from the specifications for the device approved via the PMA—was certainly not addressed. Thus, there should have been a dismissal of all claims other than the manufacturing defect claim, at a minimum.
Perhaps even stranger was the court’s treatment of implied preemption as an issue defendants did not raise in their motion. An argument whether a complaint presents parallel claims that fit through that narrow gap is going to implicate both express and implied preemption, which establish the “narrow” boundaries of that “gap” (which necessarily has two sides). Regardless, the court brushed aside Buckman with the unsupported statement that “The Eleventh Circuit has consistently held that the MDA does not preempt state tort claims like Plaintiffs’, especially at the pre-discovery dismissal stage.” Id. at *16. When the tort claims are grounded in federal law without a corresponding state law duty, the Eleventh Circuit has found those preempted on several occasions, including in Mink itself.
Given that Blevins-Ellington has already been rejected by another court considering similar arguments in a case over the same device, maybe it will not be persuasive authority in future battles over personal jurisdiction and preemption. It certainly does not deserve to be.