Risperdal, an antipsychotic drug prescribed to treat serious mental conditions – schizophrenia, manic depression, and autism – allegedly causes some male users to develop abnormal breast tissue growth. Particularly when compared to the consequences of the conditions Risperdal is indicated to treat, that seems like a relatively minor risk. It isn’t fatal. It isn’t a long-term disability. It doesn’t prevent one from making a living. Thus, Risperdal litigation is a prime example of low-value cases that only exist because of the mass-tort system that has saddled the country for so long.
Thus, it is hardly surprising that Risperdal cases are on the front lines of the battle to rein in our long national mass-tort nightmare.
Just last week we learned of these two decisions:
(1) Covington v. Janssen Pharmaceuticals, Inc., 2017 WL 3433611 (E.D. Mo. Aug. 10, 2017). Covington was one of the ridiculously misjoined multi-plaintiff complaints that mashed together residents from all over the country. Before Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), Missouri federal courts routinely remanded these atrocities to the St. Louis litigation cesspool because there was always at least one diversity-destroying non-Missouri plaintiff, as well as one jurisdiction establishing Missouri plaintiff in the bunch. Covington, 2017 WL 3433611, at *2 (“Historically − and especially in this district − courts generally have addressed subject matter jurisdiction first”).
Covington is typical of the multi-plaintiff complaint genre – 54 plaintiffs from 26 different states. 2017 WL 3433611, at *1. “Only one plaintiff” alleged injury from use of the drug “in the state of Missouri. Id. As for the rest:
The Non-Missouri plaintiffs, or those who do not have any connection to the state of Missouri, do not allege that they were prescribed Risperdal or any of its variants in Missouri, ingested the same in Missouri, or were injured in Missouri.
With BMS, the personal jurisdiction issues involving litigation tourism of this sort were largely resolved. With no fixed “jurisdiction hierarchy,” it was now logical to take up this “more straightforward issue first. ” Id. at *2.
However, these [contrary] cases were decided before [BMS] and State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41 (Mo. 2017) (en banc) [our post on Dolan is here]. These decisions make the personal jurisdiction issue in this case much easier to decide. . . . Further, analyzing the challenge to personal jurisdiction first avoids any issues relating to fraudulent joinder. Personal jurisdiction is now the more straightforward inquiry and should be addressed first as it is in the interests of judicial economy and expeditiousness.
Id. (citations and quotation marks omitted).
The personal jurisdiction question was easy. There could be no general jurisdiction. “[N]o defendant is incorporated in Missouri nor has its principal place of business in Missouri.” Id. at *4. ‘Nuff said. Nor was there specific personal jurisdiction for all but one of the plaintiffs – thus removing the planted plaintiffs from the defendants’ home states.
[B]esides the Missouri plaintiff, no other plaintiff allege that they, or a child or incapacitated person whom they represent as next friend, were prescribed or purchased Risperdal in this state, suffered an injury from Risperdal in this state, or received treatment for an injury from Risperdal in this state.
Id. The “mere fact that other plaintiffs were prescribed, obtained, and ingested [the drug in Missouri] − and allegedly sustained the same injuries as did the nonresidents − does not allow the State to assert specific jurisdiction over the nonresidents’ claims.” Id. at *4 (quoting BMS). Thus 53 of the 54 plaintiffs were dismissed (without prejudice, and with the laws of their home states determining whether an unsuccessful litigation tourism jaunt tolled their statutes of limitations). A single plaintiff’s low-value case thus remained in Missouri federal court. Id. at *5. It probably won’t last long, since the March 8, 2017 filing date was more than a dozen years after 2004, when that plaintiff admits discovering the supposed injury. Id. at *6.
Plaintiffs mounted unsuccessful rearguard actions in Covington. They sought a stay – claiming “prejudice” from the need to sort out a supposed jurisdictional morass that they, themselves, created. That went nowhere. Id. at *3 (“A motion to stay should not be abused by a party to dictate which motion is first addressed by the Court.”). They also sought “jurisdictional discovery” – a fishing expedition to search for Risperdal/Missouri contacts. Covington likewise saw that request for what it was:
Here, the plaintiffs do not plead any specific facts that support their contention that this Court has personal jurisdiction over all of the plaintiffs’ claims. Alleging that facts might be discovered during a jurisdictional discovery expedition will not allow plaintiffs to survive a 12(b)(2) motion to dismiss.
Id. at *5.
Summing up, Covington observed:
Unfortunately for the plaintiffs, [BMS], under the facts of this case, made personal jurisdiction the more straightforward issue and therefore more proper to be analyzed first. Further, [BMS] held that forums, like Missouri in this action, do not have specific personal jurisdiction over non-resident corporations when the plaintiffs do not allege any specific connection between the forum and the specific claims at issue.
Neither this Court nor the state court in which this action was removed can exercise personal jurisdiction − whether general or specific − over the defendants for the claims brought by the 53 non-Missouri plaintiffs.
Id. at *6.
(2) West v. Janssen Pharmaceuticals, Inc., 2017 U.S. Dist. Lexis 124276 (Mag. M.D. Ala. Aug. 4, 2017). West is something of the obverse of Covington. In Covington the plaintiffs joined together in an attempt to manufacture jurisdiction for a horde of weak cases, whereas in West, jurisdiction already existed, so the plaintiffs were trying to join their weak cases together to prejudice the defendant at trial. Once again, the court wasn’t buying the consolidation. West involved two plaintiffs, Harper and West, treated at one point by the same prescribing physician, both alleging the same injury from the same drug. Id. at *2, 11.
But that was as far as the similarities went.
The two plaintiffs were of much different ages; one a minor, the other not. One involved off-label use; the other not. One involved innovator liability (being filed during the few Weeks window when that theory was allowed in Alabama); the other not. There were various other differences as well, such as duration of use, and when the drug was prescribed (affecting the relevant warnings), and the age at which the risk allegedly manifested. Id. at *13-15.
The dissimilarities in the Plaintiffs’ claims have be-come more apparent as discovery and expert testimony have developed. Harper began taking Risperdal as a five or six-year old and was always a minor while taking the medication. In contrast, West did not begin taking the medication until he was almost eighteen years old and was physiologically an adult. The significance of this difference is highlighted by the expert causation testimony. . . . Further, the consequence of Risperdal not being approved for pediatric use takes on a much different meaning in the two cases.
Id. at *12-13.
These differences precluded a joint trial under Fed. R. Civ. P. 20. “The critical differences between the claims asserted by Plaintiffs outweigh the similarities between the cases, and the court finds trying the cases together would thus be inefficient and confusing for both the Court and the jury.” Id. at *14. The presence of an innovator liability claim in one of the cases demonstrated their legal as well as factual disparity. Id. at *15-16. Further, “West and Harper were prescribed multiple prescriptions, written at different times by different physicians and in different doses at different physiological stages of their lives.” Id. at *16.
Thus, two disparate plaintiffs could not claim injury “from the same series of transactions” as required by Rule 20. Id. at *17. No consolidation synergies for these two weak cases.
* * * *
Two Risperdal cases; two different jurisdictions; two attempts by plaintiffs to manipulate joinder to the disadvantage of defendants defeated. We look forward to similar rulings in the future.