We expect that none of our readers need reminding about the disastrous Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023), holding that Pennsylvania could constitutionally (under the Due Process Clause, at least) deem the mere act of registering to do business in Pennsylvania as “consent” that permits the Commonwealth’s courts to  assert general personal jurisdiction over foreign corporations without any other contact.

At this point, Pennsylvania remains the only state with a general jurisdiction consent-by-registration statute that reaches manufacturers of prescription medical products.  Illinois recently passed a more limited consent-by-registration statute, 735 Ill. Comp. Stat. 5/2-209(b)(5), 805 Ill. Comp. Stat. 5/13.20(b), that applies only to “hazardous substances,” so our primary focus for Mallory problems remains Pennsylvania.

There’s been a Pennsylvania legal development that could help some defendants prevent Mallory inspired forum shopping.  It’s a recent Pennsylvania state court medical malpractice venue decision – something that may fly under the radar for non-Pennsylvania, non-medmal defense counsel.  Of course, we at the blog live for bringing this kind of case to our defense colleagues’ attention (longtime readers may remember our early advocacy of what is now called “snap removal”).

It won’t be a magic bullet, but for prescription medical product manufacturers that have the ability, directly or through their distribution networks, to have contact with patients before or during their treatment , this decision provides a pre-litigation avenue to put a crimp in post-Mallory forum shopping.  To take advantage of this opening, manufacturers and their distributors would have to be proactive.

Here’s what happened.

The Pennsylvania Supreme Court in 2020 eliminated a 20-year-old civil procedure rule requiring that medical malpractice claims only be brought in the county where the medical treatment at issue took place.  Since this pro-plaintiff ruling, nearly half of the medical malpractice filings in Philadelphia County are suing over treatment that took place elsewhere in Pennsylvania.  That change, however, was some time in the making, so the hospitals and doctors targeted by such litigation took steps to protect themselves.

One such step was to revise their contracts with patients seeking non-emergency treatment to include contractual forum selection clauses paralleling the former venue restrictions that the Pennsylvania Supreme Court has now abolished.

That brings us to Somerlot v. Jung, ___ A.3d ___, 2025 WL 2157391 (Pa. Super. July 30, 2025), which unanimously affirmed a venue change order and held such choice-of-forum clauses were valid and enforceable under Pennsylvania law.  Here’s the clause; it’s quite simple:

NOTICE:  Any legal claims or civil actions, including, but not limited to, a claim for medical malpractice in any way related to this admission/procedure, and medical services provided by [defendant] or its employees, shall be brought solely in the Courts of Bucks County, in the Commonwealth of Pennsylvania.

Id. at *1.  The plaintiff, who was seeking non-emergency surgery for a broken finger, signed an informed consent form that contained the clause.  Id. at *2.  Since Somerlot is a medical malpractice case, it goes without saying that the surgery did not go well.

Predictably, the plaintiff sued in Philadelphia, which was permissible under the relaxed venue rule, because the medical malpractice defendant “regularly conducted business” there.  Id.  However, the trial court enforced the forum selection clause and granted a venue change to the designated county.  In affirming, the Pennsylvania intermediate appellate court pointed out that contractual forum selection clauses are uniformly enforced where the selected venue is “reasonable.”

Pennsylvania law has long recognized a contract-based exception to [the civil rule] on venue.  The Supreme Court of Pennsylvania has made clear that parties may freely contract to limit venue to one of several available venues. . . .  The trial court simply applied the modern and correct rule i.e., a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another venue and where such agreement is not unreasonable at the time of litigation.

Somerlot, 2025 WL 2157391, at *5 (citations and quotation marks omitted) (emphasis added).  Further, it is certainly “reasonable” for a forum selection clause to limit the plaintiff to suing where the actions at suit occurred, or where the plaintiff lived.  Plaintiffs “offered nothing . . . to persuade us that the venue-selection clause is unreasonable, because enforcing the clause does not seriously impair the plaintiffs’ ability to pursue their cause of action.”  Id. at *8.

Somerlot further held that it did not matter that the forum selection clause narrowed the choices allowed by the new venue rule.  That “contention [wa]s illogical,” since that is precisely what forum selection clauses are intended to do.  Id. at *5.

“An action to enforce a joint or joint and several liability against two or more defendants … may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of subdivisions (a) or (b).” Pa.R.C.P. 1006(c).  However, this Rule only creates the possibility of venue in certain counties.  It does not require that the action be litigated there, nor does it in any way limit a plaintiff’s right to contract for another proper venue prior to filing suit.

Id. (citation omitted) (emphasis added).

Nor was there anything unconscionable about the forum selection clause.  First, no precedent required an “opt-out provision . . . in order to render [the venue-selection clause] valid and enforceable.”  Id. at *6.  Second, it was in plain language, not legalese.  Id.  Third, the plaintiff “ma[de] no contention that her life was in danger prior to surgery nor that she was under duress.”  Id. at *7.  Fourth, as discussed, there was nothing overreaching about a clause limiting suit to the place where the plaintiff lived and the medical treatment occurred.  Id.  Fifth, the plaintiff “was free to make a counteroffer that struck the venue-selection clause or to walk away from the [treatment].”  Id. at *8.  Sixth and finally, a forum-selection clause designating where the plaintiff lived as the forum could not objectively be said to be “more favorable” to the defendant, even if that mattered.  Id.

Somerlot is important to prescription medical product liability litigation because there is no legal distinction (at least in Pennsylvania) between the venue selection clause in that case and forum selection clauses that restrict non-resident plaintiffs’ jurisdictional choices.  The key Pennsylvania Supreme Court case that Somerlot cited repeatedly, Central Contracting Co. v. C. E. Youngdahl & Co., 209 A.2d 810 (Pa. 1965), was in fact a jurisdiction decision involving a non-resident.  Central Contracting overruled prior decisions that such clauses limiting suit to a different state “could not deprive Pennsylvania courts of their ‘jurisdiction’ over the cause.”  209 A.2d at 816.

[W]e do not agree with these cases to the extent that they hold that an agreement between the parties, purporting to determine the forum where future disputes between them should be litigated, is per se invalid and without legal effect.  The modern and correct rule is that, while private parties may not by contract prevent a court from asserting its jurisdiction or change the rules of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation.

Id. (emphasis added).  A forum selection clause where the parties agree to limit where suits can be brought:

is unreasonable only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair plaintiff’s ability to pursue his cause of action.  Mere inconvenience or additional expense is not the test of unreasonableness since it may be assumed that the plaintiff received under the contract consideration for these things.  If the agreed upon forum is available to plaintiff and said forum can do substantial justice to the cause of action then plaintiff should be bound by his agreement.  Moreover, the party seeking to obviate the agreement has the burden of proving its unreasonableness.

Id.

Some manufacturers of prescription medical products would seem to have the ability to enter into similar contracts with patients receiving their products, and thus – using foresight − could avoid the baleful effects of Mallory-based forum shopping.  They might often need the help from their distributors or from pharmacies or prescribers willing to include manufacturers in their own Somerlot-like clauses.  A knee implant is not typically implanted on an emergency basis.  Nor are breast implants or anti-obesity medications.  Some manufacturers have direct contact with plaintiffs.  More have indirect contact through distributors, pharmacies, or prescribers happy to limit litigation and thus hold down costs and prices.  So manufacturers should think about taking steps, where possible, to condition access and use of their products to patients willing to agree to forum selection clauses.  It certainly doesn’t take much to make an anti-Mallory forum selection clause “reasonable” – limiting the plaintiff to suing where the plaintiff resided or where s/he used the defendant’s product is just as “reasonable” (indeed, functionally identical) as the clause upheld in Somerlot.

Unless reversed by either the en banc Superior Court or the Pennsylvania Supreme Court, the published Somerlot decision is binding precedent throughout Pennsylvania.  Neither seems likely, since forum selection clauses are quite routine.

Everybody has been talking about Mallory – well, here is a chance for at least some prescription medical product manufacturers to do something concrete to counteract it.  Where opportunities exist to create a valid-in-Pennsylvania contractual forum selection clause precluding Mallory forum shopping, potential defendants should try to take advantage of them.  For plenty of good reasons, defendants of all sorts find it beneficial to avoid litigating in Philadelphia County.  For some fortunate defendants, Somerlot-style forum selection clauses could well make that happen.