Without detouring into a larger discussion on the impacts of humans on the environment and our fellow animals, we can say that we are big fans of the other extant great apes. Our puppy’s fascination with nature documentaries has helped pique that interest of late. Our gingery cousin the orangutan, the largest primarily arboreal mammal, has seen its population decline by about 75% over the last hundred years. Changes to the palm oil industry and ecotourism provide some hope that the decline can be reversed. Of course, most people will not have a chance to see an orangutan at home in the wilds of Borneo and would have to visit a zoo or nature park to see one in person. Because they are smart, strong, dexterous, and adept climbers, orangutans are sometimes used to see if an enclosure intended for another animal is escapable. (Apparently, octopuses are asked to fulfill a similar function for marine enclosures.) That may be cool or cruel, depending on your perspective.
We offer this introduction because of the issues in Holliman v. CooperSurgical, Inc., No. X10-UWY-CV-23-6071739 S, 2024 Conn. Super. LEXIS 1486 (Conn. Super. July 19, 2024). The plaintiff lawyers in that case and the three others with which it has been consolidated brought 103 plaintiffs from other states to Connecticut in the hope that they can stick in state court and get favorable product liability law. This is old fashioned litigation tourism, which had been in decline for a decade before a clear shift last spring. See here and here, but also here and generally here. When successful, this brand of tourism is not good for anyone other than the plaintiffs and their lawyers. Connecticut is not the most exotic destination in general and certainly not one that traditionally comes to mind as a litigation tourism destination. Decisions such as one of the first post-Riegel express preemption wins to the rejection of innovator liability generally outweighed a looser design defect test and some holes in the state product liability act. However, a relatively recent bad preemption decision has made Connecticut a destination for enterprising plaintiff lawyers. Are we saying that plaintiff lawyers are like orangutans? No, that would not be fair to orangutans. The former do, however, come up with ideas about how to get in and stay in state courts they think will be favorable for them. In this way, they are somewhat like anti-orangutans. (We have also seen some whose paper practices promote deforestation.) While some might praise the creativity and persistence of the plaintiff lawyers in these efforts, we have familiarity with the injustices and costs that can result from them.
The plaintiffs in Holliman and its fellow traveler cases advance product liability claims concerning Filshie Clips, a class III medical device used for tubal ligation. We have discussed prior efforts at similar claims asserted in various federal courts over the last two years. They have been a mixed bag, but most have found some or all of the claims are preempted. See here, here, here, here, and here. The best chance for a plaintiff in one of these cases to avoid the obvious express preemption under Riegel is to get a court to buy that there is a state law claim for not providing certain information to FDA that is somehow not predicated on fraud on FDA and, thus, impliedly preempted under Buckman. Connecticut has now recognized such a nonsensical claim, which we assume is why the 103 non-Connecticut residents sued in Connecticut state court. Well, that plus the fact that one of the defendants allegedly has its principal place of business in Connecticut.
The issue teed up in Holliman, at least for now, was whether Connecticut could exercise personal jurisdiction over the other three defendants, none of which was incorporated in or allegedly had its principal place of business in Connecticut. When we said earlier that litigation tourism had been in decline for a decade, that started with Supreme Court’s 2013 decisions in Walden and Bauman, which collectively made it harder to impose either specific or personal jurisdiction over a defendant in the typical litigation tourism situation. It took some time for trends rejecting plaintiff tactics like misjoining a bunch of foreign plaintiffs into a single case with at least one local plaintiff and attempting to re-characterize insufficient general jurisdiction contacts as specific jurisdiction contacts (or vice versa). Still plaintiffs looked for ways to pursue cases in jurisdictions having no connection to their own claims, preferably (from their perspective) in places where the federal courts are not friendly to removal. The pro-tourism decision from the Supreme Court last year in Mallory, however, hinged on a registration statute as a vehicle for general personal jurisdiction by consent. In addition to being wrongly decided, Mallory is not going to cover all of the claims against all of the deep pocket non-resident defendants that non-resident plaintiffs will want to sue in a preferred jurisdiction. Remember, a proper personal jurisdiction analysis should be claim-by-claim and party-by-party.
Most personal jurisdiction decisions involve looking at whether a state’s long-arm statute can create jurisdiction over the claim(s) against the defendant(s) consistent with Due Process. In Mallory, the Pennsylvania long-arm statute purported to create general personal jurisdiction for state courts over corporations based on, inter alia, “(ii) Consent, to the extent authorized by the consent[; or] (iii) The carrying on of a continuous and systematic part of its general business within this Commonwealth.” The foreign corporate defendant in Mallory had registered to do business in Pennsylvania and its registration was found to be the consent needed for general personal jurisdiction through the long-arm statute without running afoul of with Due Process. In Holliman, the three foreign corporate defendants had not registered to do business in Connecticut and contended that the Nutmeg State’s long-arm statute did not cover the claims against them; they also asserted due process arguments, but the court did not have to reach those. The analysis varied somewhat by defendant, a British designer and seller, its Utah parent, and the Delaware/California parent of the Delaware/Connecticut distributor that did not move to dismiss. As noted, none of the plaintiffs were from Connecticut. In addition, by contract, the distributor took possession of the devices in the UK, not in Connecticut. Those facts meant that there was no argument in favor of specific personal jurisdiction over the movants.
As we have noted in various contexts, burden matters. Here, Connecticut law provides that the typical burden on the defendant to disprove personal jurisdiction sensibly shifts to the plaintiff when the defendant is not a resident of Connecticut. 2024 Conn. Super. LEXIS 1486, *5-6. The applicable Connecticut long-arm statute subsection provides as follows:
(f) Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state; (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.
CT Gen. Stat. § 33-929. On its face, it does not provide for jurisdiction over the product liability claims of non-Connecticut individuals against non-Connecticut corporations. The court in Holliman agreed: “[P]laintiffs fail to sustain their burden of proving the court’s personal jurisdiction over the moving defendants pursuant to § 33-929(f).” 2024 Conn. Super. LEXIS 1486, *13. Like the cagey anti-orangutans of our introduction, the plaintiff lawyers offered up two ways to keep the British designer/seller and the distributor’s Delaware/California parent in the case—they abandoned the Utah company—but their arguments went nowhere.
As to the British designer/seller, plaintiffs contended that it was required to register to do business in Connecticut and that its failure to do so created in personal jurisdiction under a different subsection of the long-arm statute, which says directly that “Every foreign corporation which transacts business in this state in violation of section 33-920 shall be subject to suit in this state upon any cause of action arising out of such business.” The court did not to address all aspects of this subsection or the registration requirement because no claim in the case could have “aris[en] out of” business in the state by the defendant.
In this case, the evidence shows that the Filshie Clip product at issue was designed and manufactured in the United Kingdom; the fact that the product’s distributor has a principal place of business in Connecticut is, at best, tangential to the plaintiffs’ claims. Importantly . . . given that none of the plaintiffs here is a resident of Connecticut, presumably, the placement of the clips, the plaintiffs’ exposure to the clips, and the negative consequences thereof, occurred outside of this state.
Id. at *28. In other words, because this is litigation tourism, Connecticut’s long-arm statute provision relating to specific personal jurisdiction—which closely tracks the language of the Supreme Court’s Bristol-Myers and Ford decisions—was not met.
The analysis for the distributor’s parent company, which was incorporated in Delaware and had its principal place of business in California, was a little more complicated. Plaintiffs claimed that the distributor was an alter ego of the parent and its contacts should be imputed. Because both the distributor and its parent were incorporated in Delaware, Delaware law applied to the attempt to pierce the corporate veil. Id. at *14. As one might expect from the little state that is the locus of incorporation for the majority of large U.S. companies, Delaware’s corporate veil is nigh on impenetrable. Without delving too deeply into the fact-specific analysis, suffice it to say that the parent and sub were separate enough despite overlapping leadership, overlapping inside and outside counsel, and other examples of control by the owner. It is somewhat ironic that the plaintiffs, who could have sued in Delaware as easily as in Connecticut, were foiled by Delaware law. Such are the vagaries of litigation tourism.
So, the non-moving distributor with its principal place of business in Connecticut is the only one left in the case. Assuming plaintiffs do not dismiss and try again elsewhere with some or all of the original defendants, the distributor would appear to have a range of options. One would be removal, either because of diversity or under CAFA, depending on the details of the consolidation order. If successfully removed, the case would land within the Second Circuit, which rendered the preemption decision the Supreme Court affirmed in Riegel. In the seventeen years prior to Glover, the District of Connecticut and Second Circuit had been pretty good on PMA preemption. Thus, the plaintiffs could end up getting stuck in a court they did not want to be in even though they booked the trip to Connecticut in the first place.