As many of the Blog’s authors and readers wake up today, they will be in New York for the ACI Drug and Medical Device Litigation Conference.  Clearly, the choice of venue matters when it comes to a conference.  It also matters to plaintiff lawyers and the medical product manufacturers that they sue.  The infamous list of judicial hellholes is typically comprised of courts where the plaintiff lawyers do what they can to bring and keep cases that could have been brought elsewhere.  For our part, we have devoted many posts to issues that affect where defendants are subject to suit, including general and specific personal jurisdiction, forum non conveniens, joinder, misjoinder, and removal.  For many of these, the question is often focused on whether one state or another, or the non-state federal courts, should have the case.  It is far less common that the issue is where in the state a case should proceed.  Because where in a state the plaintiff lives or lived at a relevant time point is often not hard to determine in a product liability case, the interesting part of venue fights still often comes down to misjoinder.  We know that the plaintiff lawyers like multi-plaintiff cases for a number of reasons, including anchoring a case in a particularly nasty part of state based on one of many plaintiffs.  We also know that the days when a Mississippi plaintiff, for instance, could sue in any county in her state—resulting in more pending cases than residents in some counties—are largely in the past.

In re AstraZeneca Pharms. LP, No. 15-25-00088-CV, 2025 WL 3251532 (Tex. App. Nov. 21, 2025) (“In re AZ”), presents a different venue issue based on the permissive language of the Texas version of the False Claims Act, the Texas Health Care Program Fraud Prevention Act (“THFPA,” not our acronym).  The result of In re AZ is that the defendant gets to move the case from Harrison County (home of Marshall) to Travis County (home of Austin) based on the granting of a mandamus petition by an intermediate appellate court after the trial court denied a motion to transfer.  While the direct applicability of the decision is pretty narrow, its analysis speaks to principles that come up in personal jurisdiction challenges.  The decision also makes us ponder about possible venue provisions in state product liability statutes.  We start with the pondering.  We are not sure such provisions would be preferrable compared to the current free-for-all.  Sometimes, but not always, specialized state courts that hear all the “mass torts” or a high percentage of the coordinated proceedings can be plaintiff-leaning.  They also tend to be in urban centers that, despite some on-going changes in jury dynamics, can match up with the aforementioned hell holes, past and present.  Other than existing consolidation procedures and existing procedural options for an in-state defendant to try to move a case to its home county, there is not an obvious default destination in each state for product liability cases.  The logic of the venue provision in the Texas mini-FCA statute is presumably that the state HHS in Austin is the recipient of any allegedly fraudulent claims for Medicaid payments.

In re AZ involved a claim from a relator that the defendant violated the THFPA based on state-wide schemes involving alleged “kickbacks” for certain of its medications.  The State of Texas declined to intervene, which, at least with the federal FCA, can be a sign that the case is a reach.  The plaintiff—we will use the familiar term and keep it singular—sued in Harrison County.  Why?  Probably for similar reasons that cases are brought there that seem more appropriate for other courts or venues.  The relatively small east Texas county—its population is about 1/20 that of Travis County based on the last census—has no obvious prominence when it comes to deciding an allegedly statewide issue focused on claims submitted to the state agency in Austin.  The THFPA includes a venue provision that allows cases to be brought in Travis County or “a county in which any part of the unlawful act occurred.”  2025 WL 3251532, *1.  Without detail, the complaint alleged that “[u]pon information and belief . . . [the defendant’s] unlawful acts occurred, in part, in Harrison County.”  Id.  In response to a motion to transfer, the plaintiff amended to add a paragraph alleging, in general terms, that defendant’s sales reps targeted unnamed providers affiliated with facilities in Harrison County.  In response to a renewed motion, plaintiff identified some content in a brochure about one of defendant’s drugs that was allegedly found in the county.  The trial court denied the transfer.

On mandamus, the denial was evaluated on an abuse of discretion standard.  The appellate court was not deprived of jurisdiction by a proposed second amended complaint or plaintiff’s desire to do discovery to support venue.  Simplifying Texas procedural issues a bit, the propriety of denying the motion to transfer is measured at the time of denial.  Id. at *3-4.  We will not say more about that or the rejection of plaintiff’s laches argument, except that the latter involved the irony of plaintiff claiming Austin was less convenient for trial than Marshall.  The more interesting part to us is the appellate court’s finding of an abuse of discretion because plaintiff failed to carry her burden “to present prima facie proof that any part of the alleged unlawful acts occurred in Harrison County.”  Id. at *6.  Plaintiff’s conclusory allegations in the live complaint were disputed by defendant, so plaintiff was required to offer actual evidence.  (It seems to us that the heightened pleading standard for a fraud-based claim should also mean that allegations of fraudulent acts in a particular place that is essential to venue cannot be vague and conclusory.)

Plaintiff first tried to say the defendants had sales reps furthering the alleged kickback schemes within the county, but she offered no actual evidence to support that.  Next, she pushed an argument similar to what we have seen in the personal jurisdiction context—that the ability for someone in Harrison County to access defendant’s websites meant that the allegedly unlawful acts had occurred in the county.  It is hard to see how maintaining a website could ever be seen as engaging in acts in each county in each state.  Rather than address the broader question, the In re AZ court determined that nothing on the defendant’s websites conveyed an “offer” that could be seen as fitting within the plaintiff’s theory of liability.  “At most, the websites represent a general invitation to apply for some of the challenged nurse services.”  Id. at *5 (internal quote omitted).  Plaintiff’s last argument was that the mere fact the aforementioned brochure was found in the county was enough to connect the defendant’s alleged scheme to the county.  However, the websites were still needed to get from the brochure to anything allegedly connected to the scheme and, of course, they contained no offers.  Thus, this was another dead end.

The result of all of this is that the case goes to Travis County.  Perhaps we have spilled too much virtual ink on this issue, but we know that venue can be determinative.  We also know that there are other cases brought under the THFPA that mirror product liability claims against drug and device companies (e.g., any claims submitted for the product were fraudulent because it was inherently worthless because of alleged contamination or risks).  Those cases also tend to get brought in some of the 254 counties in Texas the plaintiffs like most.