You cannot get too much of a good thing, so let’s celebrate another good jurisdiction case out of Missouri. (Prior examples can be found here and here, among others.) In Timpone v. Ethicon, 2019 WL 2525780 (E.D. Mo. June 19, 2019), the plaintiff lawyers cobbled together 99 plaintiffs (a pure CAFA evasion) to file a complaint in Missouri state court alleging injuries from vaginal mesh. To be more specific, the complaint was filed in City of St. Louis Circuit Court, which can legitimately claim bragging rights for being the most pro-plaintiff court in our litigious land. The defendants were not citizens of Missouri. They were not “at home” in Missouri, under the Bauman SCOTUS case. Nor were 96 of the 99 plaintiffs at home in Missouri. Those 96 were citizens of other states. They were mere litigation tourists in Missouri. Perhaps they wanted a summer vacation in Branson. Perhaps their lawyers were opportunists who read more St. Louis verdict sheets than SCOTUS opinions – or at least read them more carefully.

The defendants removed the case to Missouri federal court. Then we are off to the races with competing jurisdictional motions. The plaintiffs moved to remand on the theory that some of those non-Missouri plaintiffs shared citizenship with the defendants, thereby depriving the federal court of diversity jurisdiction. The defendants moved to dump the non-Missouri plaintiffs for lack of personal jurisdiction over the defendants with respect to the non-Missourian claims.

It could matter a great deal which motion gets decided first. The plaintiffs were certainly hoping that the federal court would first decide lack of diversity jurisdiction, then remand the case to a state court that might not be so punctilious when it comes to the recent tightening of personal jurisdiction. By contrast, the defendants wanted the federal court to take a look at personal jurisdiction first, send the non-Missourians packing, then keep the case between the Missouri plaintiffs and the non-Missouri defendants.

Luckily for the defendants, after the Bristol-Myers Squibb SCOTUS case, judges in the Eastern District of Missouri have consistently held that the issue of personal jurisdiction is more straightforward than subject matter jurisdiction, so it goes first. And it really is straightforward in the Timpone case. The complaint contained no allegations that any of the non-Missourians’ injuries arose out of the defendants’ actions in Missouri. Sure, the defendants sold product in Missouri, but even such “regular and sustained” business does not create general personal jurisdiction over a defendant. Thus, the personal jurisdiction issue comes down to specific jurisdiction and, in the wake of Bristol-Myers Squibb, that is an obvious loser for the non-Missourians. It was certainly obvious to the Missouri federal judge. If the non-Missourians really were injured by the defendants, they weren’t injured by anything the defendants did in Missouri. The judge held that he lacked personal jurisdiction with respect to the claims by the 96 non-Missourians, and was required to dismiss the claims by those plaintiffs. The remaining three Missouri plaintiffs were diverse to the defendants, so the Timpone court had jurisdiction over those claims. That is a good result for the defendant and, as we said, it was perfectly obvious.

Why wasn’t this result obvious to the plaintiff lawyers? Do they not read? Or not care? Is it ignorance or defiance?

Bexis is going to have to give up saying that nothing good ever comes out of Missouri, because for the second time in just a few months we are reporting on a well-reasoned opinion from Missouri that comes to the right result for the right reasons.  In Fullerton v. Smith & Nephew, Inc., No. 1:18-cv-245, 2019 U.S. Dist. LEXIS 77350 (E.D. Mo. May 8, 2019), the district court dismissed all claims against a Tennessee-based medical device manufacturer on the basis that the Missouri-based court lacked personal jurisdiction.

There are a couple of interesting things about this order.  But first, what happened?  The plaintiff underwent a hip procedure in Arkansas using the defendant’s device, and the hardware allegedly failed, resulting in a second procedure to remove the device.  Id. at *2.  The defendant was a citizen of Delaware and Tennessee, but the plaintiff sued in Missouri.  Id. at *2-*3.  The plaintiff was a Missouri resident, so this is not a case of blatant litigation tourism that Missouri’s courts see all too often.

Regardless, because the defendant was not “at home” in Missouri and because there was no nexus between the tort and Missouri, the defendant moved to dismiss for lack of personal jurisdiction.  Id. at *3.

It was undisputed that the court did not have general jurisdiction over the defendant because Missouri was not the defendant’s home state.  Id. at *5.  The plaintiff therefore offered up two theories of specific jurisdiction:  First, the plaintiff asserted that the court had specific jurisdiction because the defendant sought to do business in Missouri by registering to do business with the Missouri Secretary of State.  Second, the plaintiff argued that although the device was implanted in Arkansas, the tort occurred in Missouri, where the device allegedly malfunctioned.  Id. at *5.

The district court rejected both arguments, and there are two points that we would emphasize.  First, although the plaintiff attempted to base specific jurisdiction on the defendant’s registration with the Missouri Secretary of State, he acknowledged that registering to do business and maintaining a registered agent alone do not create personal jurisdiction.  Id. at *8.  Corporate registration is often asserted as a basis for general jurisdiction, but the Missouri Supreme Court has already rejected that position.  The plaintiff in Fullerton therefore added that the defendant “has a long standing history of conducting business in Missouri and sells an ‘enormous amount’ of products in Missouri on a daily basis.”  Id. at *9.

Do those alleged facts sound familiar?  They should, because those were the facts in the U.S. Supreme Court’s landmark case on specific jurisdiction, BMS v. Superior Court, 137 S. Ct. 1773 (2017).  The defendant in BMS allegedly sold lots of product in California for patients other than the plaintiffs.  But according to the U.S. Supreme Court, even a defendant’s “extensive forum contacts” cannot support specific jurisdiction if they are unrelated to the plaintiff’s claims.  Id.  Any other approach would resemble a “loose and spurious form of general jurisdiction.”  Id.

The district court in Fullerton followed BMS and rejected specific personal jurisdiction based on the defendant’s allegedly “enormous amount” of unrelated business in Missouri:

Simply stating that a company marketed, promoted, and sold a product in Missouri does not establish specific jurisdiction.  Indeed, “[t]he inquiry into specific jurisdiction does not focus on Plaintiff’s contacts with the forum state, but Plaintiff’s injury must be connected to Defendant’s contacts with the forum state.”

Id. at *9-*10 (citing cases including Keeley v. Pfizer, Inc., No. 4:15CV00583 ERW, 2015 U.S. Dist. LEXIS 85282, 2015 WL 3999488, at *3 (E.D. Mo. July 1, 2015)).  That is where the plaintiff’s case for specific jurisdiction failed:  It was not relevant that the defendant sold products for other patients in Missouri.  The defendant had to have sold the plaintiff’s product in Missouri.

Bexis recently proposed a simple test to determine specific jurisdiction under BMS:  If the claimed forum contact could be asserted by any plaintiff, no matter where that plaintiff resides, was injured, etc., then it’s not the kind of contact that makes a claim “arise from” or “relate to” the forum state.  The plaintiff’s alleged forum contacts in Fullerton fail this test spectacularly.  Anyone, anywhere could assert that the defendant sells “an enormous amount” of product in Missouri.  That, however, is not relevant.  The plaintiff had to come up with “case-linked” Missouri contacts, and he could not.

That leads to the second interesting part of the Fullerton order.  This plaintiff argued also that the product was implanted in Arkansas, but that it allegedly malfunctioned in Missouri, which meant that a tort was committed in Missouri.  Nice try, but what does that have to do with the Defendant’s forum contacts?  “While Plaintiff maintains that he was a resident of Missouri when the tort occurred, the medical device at issue was manufactured in Tennessee, shipped to Arkansas, sold in Arkansas, and implanted in Arkansas.”  Id. at *10.  In other words, the complaint was devoid of any specific facts indicating that the plaintiff’s claim “arises out of and relates to the Defendant’s activities in the State of Missouri.”  Id. at *10-*11.

In the end, “[n]one of the facts alleged by Plaintiff connect [the defendant’s] conduct in Missouri to Plaintiff’s injury.”  Id. at *11.  The court therefore lacked personal jurisdiction.  As we said at the outset, the right result for the right reasons.

Even if Bexis and McConnell like to sport overalls and tool around in souped-up tractors, we are not farmers.  We have grown enough heirloom tomatoes, ghost peppers, rainbow chard, purple basil, and other suburban garden staples, however, to know that “you reap what you sow” is usually true, assuming the levels of hydration, sunshine, and soil pH are appropriate.  (There are pleasant exceptions, like asparagus from prior owners or berries spread by critters, and undesired interlopers, like Japanese hops and any number of leafy weeds.)  It is often true in litigation too.  When the Bauman and Walden decisions came down in early 2014, it should have been apparent that the sort of litigation tourism that had driven so many verdicts and settlements based on fear of verdicts in plaintiff-friendly places was going to be a risky proposition going forward.  While we and many others touted these rulings and proclaimed what should happen with personal jurisdiction in such cases, the plaintiffs’ bar did not give up on what had been such a lucrative approach.  Instead, they continued filing multi-plaintiff cases in their desired jurisdictions, even though almost all of the plaintiffs had no ties to the jurisdiction and the defendants were not “at home” there.  They also fought against motions and appeals with sometimes creative arguments that generally flew in the face of what the Supreme Court had already ruled.  While these packaged tour cases remained in these dubious jurisdictions, they sometimes progressed to trial and, aided by lenient views of the admissibility of junky causation evidence or other rulings that tend to drive up verdicts, scored some really big verdicts.  While some defendants surely settled along the way, others stuck it out to get to appellate rulings that would undo everything with a pronouncement that “this plaintiff’s case never belonged here in the first place.”

If you are reading this and thinking about the talc litigation in Missouri, then you would be right.  It is not the only litigation to follow this pattern, but it has been one of the most visible.  The timeline implicated by Ristesund v. Johnson & Johnson, — S.W.3d –, 2018 WL 3193652 (Mo. Ct. App. June 29, 2018), is where we will start, because it shows the sowing to which we alluded so awkwardly above. Bauman and Walden come out in February 2014, signaling a tightening of the general personal jurisdiction standard and a refusal to expand the specific personal jurisdiction standard.  In September 2014, plaintiff, a South Dakota resident, filed a lawsuit in Missouri state court about alleged ovarian cancer from talc in cosmetic products along with a Missouri resident and seventy-three other non-Missouri residents.  Plaintiffs pushed forward through discovery and motions to a series of trials.  Motions to dismiss for lack of personal jurisdiction for the claims of the non-Missouri residents were denied based on the conclusion that the court’s jurisdictions over the claims of the sole Missouri resident was enough.  In February 2016, the estate of a non-Missouri plaintiff named Fox won a large verdict and then defendants appealed.  In May 2016, Ristesund won her own large verdict and then defendants appealed.  In June 2017, the Supreme Court issued the BMS decision, essentially rejecting reliance on the ties of (misjoined) plaintiffs to establish specific personal jurisdiction over the claims of a plaintiff who would not otherwise be able to establish general or specific personal jurisdiction.  In October 2017, the Missouri Court of Appeals ruled in Fox v. Johnson & Johnson, 539 S.W.3d 48 (Mo. Ct. App. 2017), that plaintiff did not establish personal jurisdiction consistent with constitutional requirements and should not get a chance to do so on remand.  (We detailed the decision here.)  The same court considered almost the same issues in Ristesund about two weeks ago.

Pretty straightforward, one would think.  Plaintiff, to her credit, even conceded that BMS controlled and the trial court lacked personal jurisdiction over defendants as to her claims. Ristesund, — S.W.3d –, 2018 WL 3193652, *2.  That meant the verdict could not stand.  The only issue left was plaintiff’s argument that “fairness requires” that she have an opportunity on remand to develop arguments and evidence support personal jurisdiction.  This is where that timeline mattered.  As in Fox, the plaintiff “had a full and ample opportunity to discovery and introduce any and all evidence that she believed would establish personal jurisdiction over the Defendants.” Id. at *3.  While not all plaintiffs try to gather and introduce evidence of personal jurisdiction, recall that this case was filed after Bauman was decided.  It went to trial after a personal jurisdiction motion was denied, an appeal on a companion case focused on personal jurisdiction, and scores of cases (see our cheat sheet) had been decided around the country on applications of Bauman that anyone would have realized undercut personal jurisdiction in this case.  The plaintiff lawyers pursuing all of these cases took a calculated gamble to work up these cases and win big verdicts in a court where personal jurisdiction was tenuous at best, as long as the defendants were willing to sustain the trial losses and get to appeals. Ristesund could have sued in South Dakota—where she lived—or in New Jersey—where the defendants were based—but she chose the litigation tourist route.

Her last gasp was to claim that BMS being decided after her trial verdict somehow entitled her to another chance to prove personal jurisdiction.  The court’s rejection of this contention can stand on its own.

Principles of fairness do not dictate or warrant remand. The pronouncement in BMS neither introduced new concepts in the law nor relied upon new principles of law. BMS was not a decision that “came out of nowhere.” To the contrary, the parties in BMS, as in Daimler, argued long standing principles of personal jurisdiction in our jurisprudence. The parties before us were well aware of the legal principles being argued before the Supreme Court, as evidenced by their pleadings and argument before the trial court.  Ristesund was not precluded from broadening the scope of her claims for personal jurisdiction while her case was before the trial court . . . . Similar to our reasoning in Fox, we are not persuaded that the law either warrants or permits us to now return this matter to the trial court for a “do-over.”

Id. at *5.  That sounds pretty fair to us.

It offends our sensibilities (and sense of self-preservation) when we see a lawsuit in a jurisdiction that is home to neither the plaintiff, nor the defendant, nor any of the activities that gave rise to the claims. Often, the only things the jurisdiction was home to were the plaintiff attorneys and a set of maddeningly pro-plaintiff judges and juries. One would think that a court system and its taxpayers would feel aggrieved at devoting labor and money to resolve disputes for someone else from someplace else, but there are miscreants in the works who manage to ignore the expense side of the equation and instead focus only on the chimerical benefits of litigation tourism or the miscreants’ misplaced sense of self-importance. (Remember, we practice in Philly. We have whiled away many hours in City Hall courtrooms watching Texas lawyers representing Utah plaintiffs suing a New Jersey company, all in front of Center City Philly jurors who would no doubt rather do their jobs, spend time with their children, or discuss the moribund status of the Phillies, Flyers, Sixers, and pretty much any home team here above Little League.) The problem is that the law on personal jurisdiction was perfectly elastic, and the laws of venue and forum non conveniens were all too easily disregarded or distorted.

But at least personal jurisdiction has been set aright by the Supreme Court. When we were in law school, during the era of Duran Duran and Footloose, we were taught that there was personal jurisdiction over a large corporation so long as said corporation had systematic contacts with a jurisdiction – which, being a large corporation, it pretty much always did. Then, in 2014, when we had grudgingly moved on to the Black Keys and Guardians of the Galaxy, the Supreme Court in the Bauman case limited general jurisdiction to corporations that were “at home” in the jurisdiction (usually meaning place of incorporation or principal place of business), and limited specific jurisdiction to cases where the corporation’s suit-related conduct created a substantial connection to the state.

The impact of Bauman was immediate and profound and wholly beneficent. We have had the pleasure on a number of occasions (here and here, for example) of reporting on cases in which the new Bauman jurisdiction architecture slammed shut the gate on plaintiff forum-shopping. This Spring we discussed the Neely case from the Kansas federal district, where the court held that a drug company that registered to do business in Kansas and then actually had the temerity to conduct some business there had not thereby succumbed to general jurisdiction. That was a good result.

Continue Reading Missouri Court Applies Bauman; Merely Doing Business Did Not Show Enough for Personal Jurisdiction

Litigation tourist plaintiffs have been taking it on the chin lately when it comes to personal jurisdiction.  Here’s another example.  Durham v. LG Chem, Ltd., 2022 WL 274498 (11th Cir. Jan. 31, 2022), is not a drug and device case and not precedential (note: the Fed. Appx. reporter is no more), but is nonetheless notable because it considers and rejects the other side’s latest (but hardly greatest) jurisdictional arguments.

Durham involved an allegedly exploding lithium battery that had been used in an e-cigarette.  Plaintiffs have been attempting to make a mass tort out of this fact pattern, but generally failing – at least against battery makers – due to the batteries having been included in the e-cigarettes by unrelated third parties, such as vape shops.  In Durham, litigation tourist plaintiffs, from Missouri, Ohio, Arizona, and Pennsylvania, brought suit in Georgia where the overseas defendant’s American subsidiary was located.  Id. at *1.

After a couple of other plaintiffs lost jurisdictional motions, these plaintiffs wanted either to hightail it to their “home districts” or else rely on a “new” jurisdictional theory – that that the district court’s jurisdiction over foreign parties was broader than that of a Georgia court” because it could consider the overseas defendant’s “contacts with the United States as a whole.”  Id.  The district court not only refused any transfer, since the plaintiffs had chosen their forum and were now stuck with it, but also flatly rejected these plaintiffs’ novel nationwide contacts jurisdictional theory.

That’s why we’re discussing it.  Somebody on the other side is putting in time and effort to invent these novel theories for mass tort litigation, so we expect our side will see this one again.  Be ready.

Plaintiffs appealed to the Eleventh Circuit – and lost again.

Only the novel jurisdictional theory was on appeal, since plaintiffs abandoned their transfer request.  Plaintiffs’ argument was based on a supposed difference between the “Due Process guarantee” of the Fifth Amendment, governing federal law, versus the Fourteenth Amendment governing the states.  Id.  We blogged about that, here several years ago, finding overwhelming precedent supporting the proposition that, as long as plaintiffs were asserting state-law causes of action under diversity jurisdiction, the relevant Due Process clause was found in the Fourteenth Amendment.

Nonetheless, with their other personal jurisdictional arguments failing right and left, plaintiffs keep trying.  Durham suggests that they may (at least against overseas defendants) start pushing some made-up difference between the two amendments’ identical Due Process language.

Durham began its analysis with Fed. R. Civ. P. 4, because “[p]ersonal jurisdiction starts with service of process.”  2022 WL 274498, at *2 (citation omitted).  Under Rule 4 (as we had discussed in our prior post) only federal causes of action where Congress has expressly authorized nationwide service of process involve a nationwide contacts analysis.  “Under Rule 4(k)(2), service of process can establish personal jurisdiction over a defendant that ‘is not subject to jurisdiction in any state[],’ but only ‘[f]or a claim that arises under federal law.’”  Id.  Thus, the overseas defendant here was not served under any federal statute, but rather under the Hague Convention.  Plaintiffs’ Hague detour failed.

But the Convention does not authorize nationwide service − it is merely a mechanism for serving parties outside the United States in partnering countries.  Accordingly, the Hague Convention does not give a district court personal jurisdiction over a party notwithstanding its lack of contacts with the forum state.

Id. (citations omitted).

Since personal jurisdiction in diversity cases like the Durham plaintiffs brought is based on state law, so is personal jurisdiction analysis.  “When personal jurisdiction is premised on the forum state’s long-arm statute, the relevant due process concerns emanate from the Fourteenth Amendment, and courts consider the party’s contacts with the forum state.”  Id. (citations omitted).  That the Supreme Court had purportedly dropped “hints” based on its reluctance to resolve Fifth Amendment issues in Fourteenth Amendment Due process cases, id. at *3, didn’t mean a thing.

These unresolved questions are irrelevant to this appeal.  It is true that the Supreme Court has been careful not to conflate the due process requirements of the Fifth and Fourteenth Amendments.  But, here, there is no question that the relevant amendment is the Fourteenth and the relevant forum is Georgia.  Thus, we have no occasion to consider whether an analysis under the Fifth Amendment would lead to a different result.

Id.

The way we – and the court in Durham – look at things, unless and until Congress enacts a statute providing for nationwide service of process in federal diversity litigation (plaintiffs should not hold their breath), there’s no reason to entertain any Fifth Amendment-based personal jurisdiction arguments in any case where federal subject matter jurisdiction is based on diversity of citizenship.  Thus, to the extent that future tort plaintiffs grasp at the straw of Fifth Amendment personal jurisdiction, that argument doesn’t get to first base, since its fundamental premise is fatally flawed.  Applicability of the Fifth Amendment does not come about simply by being in a “federal court,” but rather by the assertion of some “federal” basis for the plaintiff’s causes of action.

And even then, as we also discussed in our prior post, there is no reason to believe that the constitution itself (as opposed to a federal statute expanding the scope service of process) treats personal jurisdiction any differently – since the Supreme Court’s Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), decision, heavily relied on a Fifth Amendment case, Walden v. Fiore, 571 U.S. 277 (2014), that involved a plaintiff asserting a purely federal cause of action, that being a Bivens constitutional tort.

So plaintiffs’ novel Fifth Amendment personal jurisdiction argument fails for both procedural (not applicable to diversity cases) and substantive (no difference between Fifth and Fourteenth amendments).  Make a note of it.

Today’s case, BCBSM, Inc. v. Celgene Corp., 2021U.S. Dist. LEXIS 52785 (March 22, 2021), is an antitrust case. The plaintiffs alleged that a pharma company suppressed generic competition. We enjoy reading antitrust cases, always doing so with a healthy skepticism about the merits of the claims. We did, after all, attend the University of Chicago. But the BCBSM case is of immediate interest because of its sound application of the modern learning on personal jurisdiction.

The case was filed in Minnesota state court. The defendant removed to federal court. The plaintiffs moved to remand the case to state court for want of federal subject matter jurisdiction. The defendant argued that there was subject matter jurisdiction despite the that one of the plaintiffs shared Delaware citizenship with it, and despite the fact that all of the claims traveled under state law. Why? According to the defendant, the Delaware plaintiff was fraudulently joined, so there was diversity, and the claims turned on federal law. Meanwhile, the defendant argued that Minnesota courts could not exercise personal jurisdiction over the claims brought against it by the Delaware plaintiff in this case.

We’ve seen this movie before. (Here, for example.) There is a key threshold decision: should the court decide subject matter jurisdiction or personal jurisdiction issue first? Plaintiffs always urge resolution of subject matter jurisdiction first, hoping to return to the friendlier confines of state court. Defendants invariably head first to personal jurisdiction. Which route should the court choose? It’s a matter of discretion and courts typically select the easier route. In BCBSM, the issue of fraudulent joinder was complicated and unclear under Eighth Circuit law, and the issue of whether federal law really governed was worse. By contrast, personal jurisdiction was a factual and doctrinal picnic. So the court went to the picnic.

The question was whether the Minnesota federal court could exercise jurisdiction over the Delaware plaintiff’s claim against the Delaware defendant. To support personal jurisdiction, the plaintiffs pointed to reimbursement for certain drug purchases in Dakota County Minnesota – primarily through a particular pharmacy benefit manager (PBM). But there was no allegation that the Delaware plaintiff worked with that PBM, or was involved with any Minnesota reimbursements at all. There was no connection between that Delaware plaintiff and Minnesota. In short, the Delaware plaintiff was not a resident of the forum, suffered no harm in the forum, and none of the conduct animating its claim occurred in the forum. The BCBSM court was right; it was easy to decide it had no jurisdiction over the Delaware plaintiff’s claims against the defendant. Goodbye, Delaware plaintiff.

With the exit of the Delaware plaintiff, the subject matter jurisdiction suddenly became simple. The court did not need to mess with the knotty question of federal question, because it was now confronted with a simple matter of diversity jurisdiction. The parties on opposite sides of the v. were citizens of different states, and the amount in controversy exceeded $75,000.

Things got even simpler for the Minnesota court. After it determined it had subject matter jurisdiction over the claims brought by the non-Delaware plaintiffs against the defendant, it then transferred the case to federal court in New Jersey, because that court was well acquainted with both the parties and the antitrust issues afoot. Plus, opt-out cases were already there waiting. Judicial economy ruled the day. The plaintiffs’ choice of forum merited some deference, but not enough. Goodbye, Minnesota.

Last July, Bexis blogged about two inconsistent personal jurisdiction rulings in talc litigation. Those rulings created a personal jurisdiction split between a Missouri court and the talc MDL court on whether non-Missouri plaintiffs could sue a non-Missouri defendant in Missouri even if those plaintiffs did not use the product or suffer an injury in Missouri. The Missouri court sustained personal jurisdiction because the non-Missouri defendant had contractual relationships with non-party Missouri companies relating to product manufacturing, packaging, and supply activities. To our eyes, the Missouri rulings directly contravened the SCOTUS ruling in BMS that a non-resident defendant’s relationship with a resident third party was an insufficient basis for personal jurisdiction. By contrast, the MDL court adopted a position following BMS and concluded that there was no personal jurisdiction over the non-Missouri defendant. The MDL court held that the fact that the non-Missouri defendant “contracted with an instate manufacturer to produce some of its products does not confer jurisdiction.” The agreement with the instate manufacturer “was to facilitate the indiscriminate nationwide sale of its products, including the products that allegedly injured Plaintiffs.” One could not say that the lawsuit in any way arose out of the instate contact. Goodbye personal jurisdiction, goodbye Missouri litigation tourism.

The MDL ruling was good. It was so good that the MDL plaintiffs sought reconsideration. They lost.

The opinion in Johnson v. Johnson & Johnson Inc., 2021 U.S. Dist. LEXIS 9359 (D.N.J. Jan. 21, 2021), is short (the list of parties and counsel is just about as long as the actual opinion) and to the point. But first, here is a reminder as to how the cases got to the MDL court in New Jersey. The plaintiffs filed in state court in Missouri because, well, they’re plaintiffs The defendants removed to federal court, then the case was transferred to the MDL. The plaintiffs sought to remand the case to Missouri because, well, they’re plaintiffs.

The plaintiffs sought reconsideration of the MDL court’s decision to sever each plaintiff’s claims from the multi-plaintiff complaints pursuant to Federal Rule of Civil Procedure 21. Upon reconsideration, the MDL court reiterated that it was proper to sever the multi-plaintiff misjoined complaints originally filed in state court and thereby preserve diversity jurisdiction. The misjoinder had created a “jurisdictional tangle” or “snarl” that the court was justified in using its discretion under Rule 21 to resolve. The plaintiffs contended that severance of a third party to preserve diversity jurisdiction is appropriate only where the action was originally filed in federal court, as opposed to removal from federal court. The MDL court rejected this contention, and held that Rule 21 allows a court to dismiss jurisdictional “spoilers” when those parties are not indispensable and there would be no prejudice to the parties. There is no reason for that power not to extend to cases removed from state court.

The plaintiffs also argued that severance was at odds with the notion that a plaintiff is the “master” of the complaint. But the MDL court reasoned that this notion should not protect plaintiffs employing a “thinly veiled litigation strategy” to avoid federal court whereby “seemingly unrelated plaintiffs and non-diverse plaintiffs have joined their claims in single multiple-plaintiff actions.” The MDL court emphasized the practical importance of severance in cases where the plaintiffs’ joinders created a “snarl of personal jurisdictional issues.” The SCOTUS BMS decision requires that each plaintiff’s personal jurisdiction issues be decided individually. Severance facilitates that due process goal.

In addition, the plaintiffs argued that Rule 21 does not permit severance of plaintiffs properly joined in a multi-plaintiff complaint. There is no authority supporting this argument. There is, in fact, plenty of authority going the other way. And now there is one more case supporting such severance.

The plaintiffs also sought reconsideration of the MDL court’s decision that some of the defendants were fraudulently joined. One of those defendants manufactured a product that plaintiffs did not use. The plaintiffs were at this point merely arguing what they argued, and lost, before. The MDL court was not so much being asked to reconsider as to give the plaintiffs a “second bite at the apple.” The MDL court refused to allow such a second bite. The plaintiffs’ effort to bring another dismissed defendant back into the case rested upon new assertions regarding ownership of that defendant The MDL court held that the plaintiffs were not allowed to go beyond the complaint at the time of removal in opposing fraudulent joinder.

In short, the MDL court denied the plaintiffs’ motion for reconsideration. Similarly, reconsideration of the MDL court’s decisions on personal jurisdiction and fraudulent joinder does not prompt us to change our belief that the MDL court got it right and the Missouri court got it wrong. If anything, the new decision by the MDL court strengthens that belief. Perhaps we are right about that, or perhaps we are stubborn, or perhaps we are biased. Or all three.

It’s not exactly Groundhog Day, but we are sticking with personal jurisdiction.  Today we’re sliding two states over to Missouri.  Gateway to the West.  Home to Maya Angelou, Mark Twain, Dick Van Dyke, and John Goodman.  Birthplace of the waffle cone and home to the largest beer producing plant in the country.  Unlike Indiana, Missouri is in fact home to one to the top judicial hellholes, St. Louis.  And until recently, if we were talking about Missouri and personal jurisdiction it was usually about litigation tourism.  Fortunately, since the SCOTUS opinions in Daimler AG v. Bauman, 571 U.S. 117 (2014)  and Bristol-Myers Squibb v. Superior Court, 137 S. Ct. 1773 (2017), litigation tourism in Missouri is more difficult, and Missouri courts have actually done a pretty good job of changing their ways. We’ve written about that evolution frequently, including here.

Missouri is also getting it right when it comes to foreign manufacturers.  In Ackerman v. Howmedica Osteonics Corporations, 2020 WL 6588358 at *1 (W.D.Mo Nov. 10, 2020), plaintiff alleged that his knee replacement surgery had to be revised because the bone cement used in the procedure was defective.  The bone cement consists of a liquid and a powder component. Those two components are manufactured and packaged by two European companies, one in Germany and one in Ireland.  When the product is ready, the Irish company ships it to an American company’s warehouse in New Jersey from which it is distributed through the United States.  Id.

Plaintiff sued the German manufacturer who moved to dismiss on the ground that the court lacked personal jurisdiction.  The court relied on rulings by SCOTUS in BMS, the Eighth Circuit in Burlington Indus. Inc. v. Maples Indus. Inc., 973 F.3d 1100 (8th Cir. 1996), and the Missouri Supreme Court in State ex rel. LG Chem, Ltd. v. McLaughlin, 599 S.W.3d 899 (Mo. Jun. 2, 2020) all of which supported defendant’s position.  The German manufacturer had a laundry list of reasons why the court should find it had no contacts with Missouri at all, let alone a connection between the state and plaintiff’s specific claims.  It never sold a product in Missouri, did no advertising there, has no office or any other assets there, and so on.  Ackerman, at *2.  Defendant had no way of knowing the cement would end up in Missouri once it shipped the product to Ireland.

Plaintiff argued that the German manufacturer, by placing the product into the stream of commerce for sale in the United States, should have known the product was going to end up in Missouri.   And similarly, having submitted approval documents to the FDA so the product could be sold in the United States was enough to conclude that the foreign company availed itself of doing business in Missouri.  Id. at *3.  But SCOTUS has rejected that conduct direct to United States as a whole is sufficient to establish specific jurisdiction in any particular state.  Id.  The decision by the Missouri Supreme Court likewise found that when the only contact with the state is sale of the foreign manufacturer’s product by a third-party, that is simply not enough.

This was a pretty cut and dried case of no personal jurisdiction, but since jurisdictional wins in Missouri are still relatively new, highlighting them brings us happiness.

As we write this, there is great uncertainty in the country.  The intersection of state and federal law is a focus, as is the possibility that one or more of the many recent challenges to how states count votes for the presidential election will end up in the Supreme Court.  The tension is palpable, in the knots in our stomachs, the bile rising in our throats, the thump of our carotids, and our obsessive doom-scrolling of “news” on our phones.  Some find a hot cup of tea soothing.  We cannot offer that to our readers, but we can try to read some tea leaves on a relatively recent Supreme Court argument.  Will it help?  The margin of error in any predictions we could make would be unacceptably wide.  (We know that none of this is actually funny, but awkward humor is a defense mechanism.)

Since the Supreme Court decided Bauman in 2014, we predicted, tracked, and recapped its impact on drug and device litigation, particularly the scourge known as litigation tourism.  The contemporaneous decision by the Court in Walden yielded less attention, but we have often viewed Bauman and Walden as a pair, the former defining the new standard for general personal jurisdiction and the latter defining the standard for specific personal jurisdiction.  As the lawyers for litigation tourists refused to accept what Bauman meant for their business model, one of their main arguments boiled down to “specific personal jurisdiction for the claims of another plaintiff or group of plaintiffs should make a defendant be subject to general personal jurisdiction for other plaintiffs’ claims.”  The Court swatted that down in BMS, citing both Bauman and Walden.  Along the way, and since BMS, we have posted on many permutations of the personal jurisdiction issues that affect our drug and device clients.  You may be shocked to hear, however, that there is litigation out there that does not involve drug or device manufacturers.  Like in Bauman, automobile manufacturers still get sued.  And, like in Bauman, the Supreme Court is considering another appeal related to personal jurisdiction, this time on specific jurisdiction.

What follows is our impressions of the October 7, 2020, oral argument in Ford Motor Co. v. Montana Eight Judicial District Court, which is actually a combined appeal of two state court decisions.  We have not dug into the briefs or the decisions below and will try to focus on the implications for drug and device cases.  We also will not recap all the back-and-forth or comment on how the Court’s composition has changed since October 7.  So, keeping things fairly general, there was a case brought against Ford (and, we assume, non-diverse defendants) in Minnesota state court related to an accident with a Ford vehicle originally sold in North Dakota in the mid-1990s and a case brought against Ford (and, we assume, non-diverse defendants) in Montana state court related to an accident with a Ford vehicle originally in Washington.  Ford is at home in Michigan, designs its vehicles there, and manufactures them in multiple states but not in Minnesota or Montana.  As is often the case in Supreme Court arguments, like in law school classes and exams, the facts were a jumping off point for many hypotheticals.  From what we know, Ford contested both general and specific personal jurisdictions in these cases and plaintiffs argued that specific jurisdiction applied largely because Ford conducted activities in each state and the accidents occurred in the states where the plaintiffs lived and chose to sue.

While the decision that comes down may help to clarify the standards for specific personal jurisdiction, the overall message from the oral argument is that personal jurisdiction is a confusing subject.  Back when general personal jurisdiction was easy to establish (except perhaps for foreign-based defendants), the concepts were relatively simple and it was not often necessary to analyze specific personal jurisdiction.  While we do think some of the confusion rests at the feet of the litigation tourism proponents, we were surprised that the concepts kept blurring the way they did.  It is true that the line of specific jurisdiction cases leading to Walden and expounding on Walden is less robust than on the general jurisdiction side, but the concepts seem separable.  Applying the concepts to the sort of forum shopping in which drug and device plaintiffs engage, the general jurisdiction inquiry relates to whether the defendant can be subject to suit in California or Missouri, for instance, no matter where the plaintiffs are from, the defendant is at home, or the operative actions of their claims took place.  For specific jurisdiction, the decision may be between two states whether plaintiff and the facts of the case have ties, probably with some overlay of the likelihood the case will end up in federal court.  With those predicates, a few things struck us from the argument.

First, maybe it owed to a remote format, but there was more interrupting than we recall from other arguments.  The Justices are expected to interrupt, of course, but it went both ways.

Second, Justice Thomas asked questions of both sides.  Having once gone a decade between posing questions in oral argument, maybe the remote format agrees with him.

Third, there was a surprising amount of discussion of due process almost as to whether there was some doubt that there are constitutional limits on the state exercise of personal jurisdiction.  We think of the concept as so ingrained that it is rarely necessary to go back to the starting point to analyze personal jurisdiction.  Like recounting the supremacy clause when arguing preemption, however, starting at the start can help an explanation sometimes.

Fourth, after a bunch of hypotheticals on how the defendant’s proposed proximate cause standard for the old Helicopteros phrase that specific personal jurisdiction means the claims “arise out of and relate to” the defendant’s contacts in the forum state, which did not seem to advance the ball much, Justice Gorsuch highlighted the framework:

We’ve made a firm distinction between specific and general jurisdiction for many years.  We say specific jurisdiction has to “arise out of.”  Everybody seems to know what that means. Nobody knows what “relates to” means, the other part of the test.

Transcript at 28.  He then spelled out how the long-arm statutes fit into the process, which seemed to focus the inquiry, at least for a while.  There was still conflation of general and specific jurisdictions cases and principles after this.

Fifth, the dueling standards articulated by the parties were something like ships in the night and it was not clear the Court wanted to get aboard either one.  The proximate cause standard, with a sort of “but for” causation back-up, from Ford was intended to apply to all specific personal jurisdiction inquiries and, like proximate cause issues in trial courts, how the justices saw the application to every conceivable permutation did not necessarily match up.  The plaintiffs offered a narrow two-part test for product liability cases (and maybe cases against manufacturers):  “would the defendant be submitting to the coercive power of a state with little interest in the controversy” and would the plaintiff’s claims “really comes within” the defendant’s in-forum contacts.  Plaintiff posited that sales of the same type of product into the forum where plaintiff was injured would create personal jurisdiction over the defendant manufacturer, even if the plaintiff’s product was manufactured, designed, and sold elsewhere.  That sounds quite a bit like a hybrid between the general and specific standards articulated in prior cases and we read BMS as rejecting blurring the lines.

Sixth, the issue of how the defendant’s actions outside the forum state might give rise to specific personal jurisdiction was less developed.  Justice Kavanaugh, in particular, pushed on the issue of purposeful availment by cultivating a market that included the forum.  Interestingly, the plaintiffs conceded that non-targeted advertisement—like just having a site on the internet that offered products for sale wherever—would be insufficient to bestow jurisdiction everywhere.

Seventh, litigation tourism has a bad name and the plaintiffs tried to distance themselves from the BMS plaintiffs.  That included an express denial of “forum shopping.”  By emphasizing that they had sued where their accidents/injuries occurred, these plaintiffs clearly wanted to be seen as different.  We wonder whether whatever the Court does here will include some comments that can be used to oppose litigation tourism.

Last, what does this mean for drug and device manufacturers?  Clearly, the standard Ford articulated would be better than the standard that plaintiffs articulated.  It certainly makes sense that the forum contacts should be alleged to have (proximately) caused the injuries that the plaintiff claims; of course, drug and device plaintiffs tend to allege many cause of action that can involve behavior in multiple places.  Plaintiffs offered the criticism that “it would send injured plaintiffs on an irrelevant scavenger hunt to trace the route of the particular pill or toaster that caused injury, just to try to figure out where to sue.”  Transcript at 36.  It is unclear if a majority will think the burden of such pre-suit diligence is too great to impose.

A number of flaws in the plaintiffs’ proposal were highlighted by questioning from the justices and they would surely plat out in drug and device cases.  Focusing on sales of the product into the forum, for instance, could easily slide down a slope into sales of similar products or of components within the plaintiff’s product that were also included in other products.  Recent device litigation experience emphasizes how often complaints about a component can create a loud noise without any plausible connection to the claimed injury.  Speaking of device litigation, the plaintiffs touted that a number of state attorneys general had supported plaintiffs’ position, which made us think that the AGs want to expand the circumstances under which they can bring cases against out-of-state manufacturers for out-of-state conduct that alleged impacts in-state consumers.  We say “impacts” rather than “harms,” because some state consumer protection statutes, which bestow broad powers on AGs and the threat of treble damages, fines, etc., do not require demonstrable injuries to consumers.  Clearly, the plaintiffs’ proposal, which does not look at causation or injury, would be better for them.  Certainty on these issues for drug and device manufacturers, AGs, and private plaintiffs on the rules governing personal jurisdiction would be appreciated, but may not come as soon as anyone wants.  That dynamic sounds familiar.

 

As consumers, and connoisseurs, of personal jurisdiction precedent, we write today to consider the latest jurisdictional mess that has arisen, this time in talc litigation.  Two courts, deciding the same jurisdictional issue on the same set of facts in the same week, have reached diametrically opposed decisions.  The current contretemps concerns “Shimmer” – a minor J&J talc product that, for a few years was made by a contractor located in Missouri.  Because of the Missouri contractor, this product has taken on absurdly outsized importance, as plaintiffs strain to create a “loose and spurious” form of general jurisdiction post-Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), that could keep the talc claims of litigation tourist plaintiffs from around the country in notoriously plaintiff-friendly St. Louis City.

In Ingham v. Johnson & Johnson, ___ S.W.3d ___, 2020 WL 3422114 (Mo. App. June 23, 2020), the court allowed the plaintiffs’ Shimmer gambit to succeed, holding that non-residents purporting to use the product could assert personal jurisdiction over the non-resident defendants.  But in the Talc MDL in New Jersey, the same arguments were rejected.  See Hannah v. Johnson & Johnson Inc., 2020 WL 3497010 (D.N.J. June 29, 2020).  You can guess which one of the two we favor.

We’ll get the unpleasantness out of the way first.  Ingham is that notorious case involving that 22-plaintiff consolidation and the resultant four billion+ dollar verdict.  These defendants had been shaking up the plaintiffs’ cozy little operation, and this was that system’s way of trying to punish them for it.  There are a LOT of things wrong with Ingham, but in this post we’re dealing solely with personal jurisdiction.  Of the 22 plaintiffs in the consolidation, 17 were litigation tourists.  2020 WL 3422114, at *1 (“Seventeen Plaintiffs lived, purchased Defendants’ Products, used Defendants’ Products, and [claimed injuries] outside Missouri”).  Fifteen of those plaintiffs claimed (often preposterously) to have used the Shimmer talc product – but not in Missouri.  Id. at *2.  The allegations were:

Plaintiffs alleged Defendants were subject to specific jurisdiction on their claims because [J&J] had two long-term contractual relationships with [a third party], which is headquartered in Missouri.  Plaintiffs alleged one contractual relationship involved the manufacturing, packaging, and supply of Shimmer and the other involved the manufacturing, packaging, and supply of Johnson’s Baby Powder.  Plaintiffs argued [the third party] engaged in manufacturing, packaging, and supply activities relating to the Products in Missouri “at … Defendants’ direction and under [their] control.”

Id.

One would have thought that BMS would have dispatched this argument.  After all, the Supreme Court held, 8-1:

A defendant’s relationship with a third party, standing alone, is an insufficient basis for jurisdiction. . . .  The bare fact that BMS contracted with a California distributor is not enough to establish personal jurisdiction in the State.

137 S. Ct. at 1783 (citations and quotation marks omitted).

But not in Ingram.  “The trial court” – the same judge who consolidated 22 plaintiffs into a single trial – “found Defendants contracted with Missouri-based [entity] to manufacture, label, and package the Products and [that entity’s] relevant actions were under the direction and control of Defendants.”  2020 WL 3422114, at *3.  So what does “direction and control” mean?  According to Ingram, that meant almost all the things that the Supreme Court in BMS didn’t find happened:  “develop” the product, “create a marketing strategy,” and “manufacture, label, [and] package” the product in the state of Missouri.  Id.

The intermediate appellate court in Ingram basically found that hiring a third-party to make a product according to the hiring party’s specifications is enough to create personal jurisdiction extending to anybody in the country (maybe the world) who uses that product.  Id. at *13 (defendant “contracted . . . to manufacture, package, and label [the product] . . . in Missouri according to [defendant’s] specifications”).  The appellate court characterized the hiring of an in-state company to produce a product to specification to create “a host of significant activities in Missouri.”  Id.

Here, the parties concede Shimmer was manufactured, labeled, and packaged according to [defendant’s] specifications in Missouri.  Unlike in [BMS] specific jurisdiction over [defendant] is proper because it is based on something more than a mere contractual relationship with a third party.

Id. (emphasis added).

But what “something more”?  The defendant BMS also had a contract with an in-state entity.  But in BMS it was to distribute the product.  So the only difference is that, in Ingham, the defendant provided specifications that its independent contractor had to use.  There’s not even an allegation that the defendant did anything more.  So the act of providing specifications was all that was needed for anyone in the country who claimed to use a product (here, Shimmer) solely in that plaintiff’s home state to establish specific jurisdiction over the non-resident contracting party that provided the specification – and for all claims, not just manufacturing.

If you or your clients are making anything in Missouri, then you may want to reconsider, at least if Ingham stands and you (or your client) want to stay out of a 22-ring circus in St. Louis.

But the Supreme Court has a name for that kind of bloated specific jurisdiction theory – “a loose and spurious form of general jurisdiction.”  BMS, 137 S. Ct. at 1781.  As the eight-justice majority pointed out:

Our cases provide no support for this approach. . . .  The present case illustrates the danger of the [this] approach.  The [lower courts] found that specific jurisdiction was present without identifying any adequate link between the State and the nonresidents’ claims.

Id.  The non-resident plaintiffs in Ingham had none of the kind of contacts that BMS recited actually were necessary:

[T]he nonresidents were not prescribed [the product] in California, did not purchase [the product] in California, did not ingest [the product] in California, and were not injured by [the product] in California.  The mere fact that other plaintiffs were . . . does not allow the State to assert specific jurisdiction over the nonresidents’ claims.

BMS, 137 S. Ct. at 1781.

In contrast, the same facts – non-residents who claimed to have used the same Shimmer talc product manufactured by the same entity – failed to allow the State of Missouri to exercise specific personal jurisdiction over the same defendants in Hannah, 2020 WL 3497010.  The jurisdictional question arose in a relatively convoluted way (which happens in MDLs).

Another questionable trick that mass tort plaintiffs regularly used pre-BMS was the join together scores of plaintiffs (but under 100 to avoid creating a CAFA mass action) in the same complaint with a few plaintiffs from the defendant’s home state to defeat diversity and a few forum residents to create jurisdiction (supposedly).  Indeed, that was what created the situation BMS itself had to deal with.  See 137 S. Ct. at 1778 (eight complaints with 678 total plaintiffs, including 86 residents).

However, as we’ve discussed before, after BMS most federal courts took steps to dismantle these monstrosities, looking at personal jurisdiction first, dismissing the non-residents, which necessarily eliminated the plaintiffs that defeated diversity by sharing citizenship with the non-resident defendant, and keeping the rest in federal court.

That’s what happened, partially, in Hannah.  The talc defendants removed a number of multi-plaintiff complaints so they could do precisely that – but instead of proceeding individually before whatever federal judge was randomly assigned the removed action, all of the removed actions were transferred to the Talc MDL with the parties’ competing remand and personal jurisdiction motions still pending.  2020 WL 3497010, at *2.  Thus, whether all these talc plaintiffs were subject to dismissal in the MDL depended on whether they could establish personal jurisdiction in Missouri.

The Hannah opinion is quite lengthy, because each complaint had slightly different lineups of defendants that required separate consideration.  But one of the issues that Hannah decided was whether non-residents of Missouri, who claimed to have used the Shimmer talc product, could by virtue of that use assert personal jurisdiction over the defendants in Missouri.

Plaintiffs allege that the [contractor defendants] participated in the Johnson & Johnson Defendants . . . conspiracy and processed, bottled, labeled, or distributed the products.  Defendants claim that the products were only manufactured by [one of the contractor defendants] in Georgia, whereas another product, Shimmer Effects, was manufactured by [another of the contractor defendants] in Missouri.

2020 WL 3497010, at *4 (citations omitted).  So what’s up with Georgia?  Well, the same defendant at issue in Ingham was actually more than one separate entity.  One piece of this defendant made some talc products in Georgia, whereas another subsidiary had produced the aforementioned Shimmer product in Missouri.  Id.

Passing by a variety of fraudulent joinder and alter ego issues that are interesting in their own right, we come to Hannah’s resolution of the same question that was at issue in Ingham – Missouri personal jurisdiction over the J&J defendants, with respect to plaintiffs who did not allege that they used a J&J product (such as Shimmer) in Missouri.

Short answer – there was none:

Essentially, the Class Three Plaintiffs who have no connection to Missouri are missing the requisite contact between their claims and the Johnson & Johnson Defendants under [BMS]].  The fact that the Johnson & Johnson Defendants contracted with an instate manufacturer to produce some of its products does not confer jurisdiction.  This is so because Johnson & Johnson’s agreements with the Missouri companies was to facilitate the indiscriminate nationwide sale of its products, including the products that allegedly injured Plaintiffs.

2020 WL 3497010, at *22 (emphasis added).

The emphasized sentence concerned the same type of allegations as in Ingham that “Plaintiffs’ ‘chain’ of minimum contacts begins with” the entity that “only produced Shimmer Effects.”  Id.  Vague allegations that this Missouri entity “was acting at the direction of or on behalf of the Johnson & Johnson Defendants,” id., did not (unlike Ingham) cut the jurisdictional mustard:

While those contacts might well constitute purposeful availment of the benefits and protections of the State of Missouri in a contract action, these contacts are irrelevant in this products liability action.  Indeed, Plaintiffs have not demonstrated that their injuries in any way arise out of those specific agreements.  In other words, they neglect to allege a connection between their injuries and those specific distribution agreements.

Id.

Nor did the other scattered Missouri contacts that the talc MDL plaintiffs were able to dredge up fill the void created by lack of purchase, use, or injury by any product within the relevant jurisdiction.  Generalized “market research” was insufficient.

[T]here is no allegation that the Missouri market research was in any way integral to bringing the products at issue to market in the places where the Class Three Plaintiffs purchased them.  In fact, it is not even clear from Plaintiffs’ evidence whether the Johnson & Johnson Defendants were conducting nationwide or Missouri-specific market research.  Consequently, the attenuated contacts that Plaintiffs seek to attribute to the Johnson & Johnson defendants do not support their assertion of specific jurisdiction.

Id.

So now we have the conundrum that, if an action in Missouri state court contains Shimmer-related allegations, under Ingham there is specific personal jurisdiction under that court’s reading of BMS.  If, however, the same case can be removed to federal court and shipped to the Talc MDL, then there is no jurisdiction.  Of course, we agree with the MDL court in Hannah for the reasons just stated – the Shimmer allegations are merely the latest iteration of a “loose and spurious” form of general jurisdiction rejected in BMS.  The easiest (and maybe only) way to resolve this paradox, from our perspective, is for the Missouri Supreme Court to accept an appeal in Ingham and to reverse.  Ideally, that court would reach the same result as the Illinois Supreme Court in Rios v. Bayer Corp., ___ N.E.3d ___, 2020 WL 2963318 (Ill. June 4, 2020), discussed here, and put an stop to St. Louis’ run as a nationwide mass tort mecca.

If not, then our clients will need to reexamine the extent to which it is safe for them to contract with Missouri companies concerning just about any aspect of product manufacturing.  For the result in Ingham – that providing specifications to an otherwise independent in-state contractor for the production of a minor product results in every plaintiff in the country that claims to have used that product also to have jurisdiction to also sue about all of the defendant’s other similar products no matter where they were made or used – is the epitome of an “unacceptably grasping” and “exorbitant” exercise of personal jurisdiction.  Daimler AG v. Bauman, 571 U.S. 117, 138-39 (2014).