The Supreme Court decided “the big one” today – and not to keep anyone in suspense [the big one is a major earthquake in California mass tort litigation], the result is that the California Supreme Court finding of personal jurisdiction despite neither the plaintiff nor the defendant residing in the state has been reversed. Here is a link to the slip opinion in Bristol-Myers Squibb Co. v. Superior Court, No. 16-466 (U.S. June 19, 2017) (“BMS”).  It’s an 8-1 opinion, not a close decision, with Justice Alito writing for the Court.  Only Justice Sotomayor (predictably, from her prior positions) dissented.

After BMS, a lot of the litigation industry in California will go sliding into the sea.

This is one of the most important mass tort/product liability decisions ever, because expansive notions of personal jurisdiction – that large companies can be sued by anyone anywhere – are behind the growth of “magnet jurisdictions” (ATRA calls them something else) that attract litigation tourist plaintiffs from all over the country, suing companies from all over the country, without regard for whether any such defendant is incorporated or does business in the state.  Get rid of any personal jurisdiction basis for doing so, and we, if not end, at least put major limits on plaintiffs’ ability to forum-shop in this manner.

In our sandbox, product liability plaintiffs, suing manufacturers of FDA-regulated products, have flocked to what they view as their most favorable venues, certain notorious counties in Missouri, Illinois, Pennsylvania, New Jersey, New York – and yes, California. That’s what BMS rejected.  For several decades, plaintiffs’ litigation tourist strategy relied on expansive interpretation of “general” personal jurisdiction – that any defendant that conducted “continuous and substantial” business in any state could be sued in that state by anyone.  This theory was damaged by Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) (which we call “Brown”), and then demolished altogether in Daimler AG v. Bauman, 134 S.Ct. 746 (2014) (which we call “Bauman”).

After Bauman, mere “continuous and substantial” business in a jurisdiction could not support general personal jurisdiction.  Rather only corporate defendants “at home” in the particular jurisdiction could be sued there. Bauman, 134 S. Ct. at 757; Brown, 564 U.S. at 919.  With no “exceptional” exceptions that apply to mass torts, Bauman limited general personal jurisdiction to those states where a corporation is incorporated or has its principal place of business. Bauman, 134 S. Ct. at 760-61.  “Exorbitant” and “grasping” jurisdictional allegations that would expand jurisdiction to “every other State” where large corporations do business, violate Due Process. Id. at 761-62.  “A corporation that operates in many places can scarcely be deemed at home in all of them.” Id. at 761 n.19.

Bauman thus threatened the viability of litigation tourism the litigation industry in numerous plaintiff-friendly venues, since 90%+ of the plaintiffs in such venues are typically non-residents.  Plaintiffs fought back.  The ink on Bauman was barely dry when they started trying to import the same expanded “continuous and substantial” rationale into the other major basis for personal jurisdiction, “specific” personal jurisdiction, which heretofore had been limited to suits “related to” the forum state – that is suits brought by in-state residents or persons injured in a state.  By a 4-3 margin, the California Supreme Court in Bristol-Myers Squibb Co. v. Superior Court, 377 P.3d 874 (Cal. 2016) (which we’ll call “BMS II”), conferred specific personal jurisdiction on litigation tourist plaintiffs from all over the country suing over a prescription drug.

No more.

As reiterated by the United States Supreme Court in BMS, the “primary consideration” of personal jurisdiction  is “the burden on the defendant.”  Slip op. at 6 (quotingWorld-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)).  While general jurisdiction is governed by Bauman’s “at home” requirements as to corporate defendants, “[s]pecific jurisdiction is very different.” Id. at 5.  “The suit” itself – not just some other aspect of litigation – “must arise out of or relate to the defendant’s contacts with the forum.” Id. (emphasis original) (citation and quotation marks omitted).

[S]pecific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction.

Id. at 6 (quoting Brown, 564 U. S. at 918).

The California Supreme Court’s BMS II ruling that any “substantial connection” between a corporate defendant’s activities and California, whether or not causally related to a litigation tourist plaintiff’s claimed injuries, would suffice to support jurisdiction failed miserably.  Personal jurisdiction reflects a concern with “submitting to the coercive power of a State that may have little legitimate interest in the claims in question.”  BMS, slip op. at 6.  That would be California in this case, where the litigation tourist plaintiffs did not reside in the state and did not sue over a drug that they purchased in the state.  When there is no “affiliation between the forum and the underlying controversy, . . . specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.”  Id. at 7 (emphasis added).  We believed from day one that the California Supreme Court had improperly imported the general jurisdiction test rejected in Bauman into specific jurisdiction. In BMS the Supreme Court agreed:

[T]he California Supreme Court’s “sliding scale approach” is difficult to square with our precedents. Under the California approach, the strength of the requisite connection between the forum and the specific claims at issue is relaxed if the defendant has extensive forum contacts that are unrelated to those claims.  Our cases provide no support for this approach, which resembles a loose and spurious form of general jurisdiction.

Id.  “Loose and spurious” – that’s a good description of the basis for most litigation tourism in mass torts.

The State Supreme Court found that specific jurisdiction was present without identifying any adequate link between the State and the nonresidents’ claims. . . .  [T]he nonresidents were not prescribed [the drug] in California, did not purchase [it] in California, did not ingest [it] in California, and were not injured by [it] in California.  The mere fact that other plaintiffs were prescribed, obtained, and ingested [the drug] in California − 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 8 (citing Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014)).  Nothing related solely to other plaintiffs matters in specific jurisdiction.  As we suspected it would be, Walden was the critical precedent here. BMS, slip op. at 8-9.  The cases plaintiffs relied upon, Keeton v. Hustler Magazine, Inc., 465 U. S. 770 (1984), and Phillips Petroleum Co. v. Shutts, 472 U. S. 797 (1985), were “amply” distinguishable and “had no bearing on the question presented here.”  BMS, slip op. at 10-11.

Nor did the presence of a California distributor – equally uninvolved with the plaintiffs who brought the suit – change the result one iota.  Repeated prior precedents have held that personal jurisdiction “must be met as to each defendant over whom a state court exercises jurisdiction.”  Id. at 11 (citations and quotation marks omitted).  “The bare fact that BMS contracted with a California distributor is not enough to establish personal jurisdiction in the State.”  Id. at 12.  This ruling, while something of a side show in BMS, should be critical in other types of cases, such as asbestos, where dozens of defendants are typically joined together without regard for where either the defendants or plaintiffs are located.

Thus, unfortunately for litigation tourists, “a defendant’s general connections with the forum are not enough.”  Id. at 7.  Plaintiffs’ unrestricted forum shopping days are over.  “[S]traightforward” application of fundamental personal jurisdiction principles means that plaintiffs may “join[] together in a consolidated action in the States that have general jurisdiction over BMS.”  Otherwise, “the plaintiffs who are residents of a particular State . . . could probably sue together in their home States.”  Id.  Finally, while the Court did not address “whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court, ” id. as we mentioned above, Walden v. Fiore was probably the single most important prior precedent in BMS.  As our post on Walden pointed out, Walden was a federal (Bivens) action filed in federal court.  We thus don’t see that caveat as being a meaningful one.

The result in BMS means that the era of big mass torts, filed by plaintiffs anywhere against anyone over anything, is (to paraphrase Bill Clinton) over.  There will be still be mass torts, but as BMS pointed out at the end of the opinion, they will either be defendant-specific − filed in the target defendant’s state of incorporation or principal place of business – or limited to plaintiffs from the state where the litigation is situate.  San Francisco (as in BMS), Los Angeles, Philadelphia, St. Louis, Chicago, Madison County, wherever….  These jurisdictions can only assert jurisdiction over in-state plaintiffs, or else defendants that are (unfortunate enough to be) “at home” in those respective states (subject, of course, to state venue requirements).

A very good day for the right side of the “v.” – and not very good for those on the wrong side.  Plaintiffs will have to get used to the radical proposition that defendants have constitutional rights, too.

The only remaining personal jurisdiction theory available to the great majority of litigation tourist plaintiffs is the so-called “jurisdiction by consent” theory that posits that mere registration to do business/appointment of an agent for service of process – something that all 50 states require – constitutes “consent” to be sued even by non-residents in any state where a corporate defendant so registers. Of course, a lot of states (including California since way before Bauman) do not interpret their personal jurisdiction statutes in that manner (see our discussions here and here).  Critically, as we’ve also pointed out before (including in our post-Bauman personal jurisdiction cheat sheet, which we will be now be converting to a consent cheat sheet), that consent theory would be just as expansive, and thus just as  violative of Due Process, as the general and specific jurisdiction theories rejected in Bauman and BMS, respectively.

Remember, the basis for all of the Court’s jurisdictional jurisprudence is Due Process. “[A] state court’s assertion of jurisdiction exposes defendants to the State’s coercive power,” so that assertion “is subject to review for compatibility with the Fourteenth Amendment’s Due Process Clause.”  BMS, slip op. at 5 (citation and quotation marks omitted).  Plaintiffs should not expect to achieve the same unconstitutional result by other means, such as expanding state corporate registration statutes beyond recognition.  Plaintiffs in BMS could not escape Bauman in that fashion.  Future plaintiffs should not expect to escape both Bauman and BMS with yet another subterfuge.  Under Due Process, there must be “a connection between the forum and the specific claims at issue.”  BMS, slip op. at 8.

Finally, we’d also like to point out one more implication of today’s BMS decision – it affects available venues for a large number of federal causes of action.  The general federal venue statute, 28 U.S.C. §1391, provides that, “[f]or all venue purposes,” a corporation “shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction.”  Thus, by the terms of §1391, the scope of personal jurisdiction recognized in BMS (subject to the Court’s final caveat in BMS about federal personal jurisdiction) also becomes the template for the permissible venue choices available to federal plaintiffs bringing suit under any federal statute that does not contain its own statute-specific venue provisions.

This guest post comes courtesy of Jonathan Hoffman, a Senior Partner at MB Law Group LLP, in Portland, Oregon.  Jon, a long-time member of the Product Liability Advisory Council (“PLAC”), originally circulated a version of this post to PLAC members.  Bexis, also a long-time PLAC member, saw it, thought blog readers would be interested, and successfully importuned Jon to submit a longer version here.  Access to these kinds of alerts are one reason, among many, why we encourage drug and medical device manufactures confronted with product liability litigation to join PLAC.

As always our guest bloggers deserve 100% of the credit (and any blame) for their posts.  Onward to the Hague Convention.

**********

Although most drug and medical device litigation is purely among domestic individuals and defendants, many manufacturers of these products are based outside the United States or are domestic subsidiaries of overseas companies.  In recent years, the US Supreme Court has trimmed many excessive impositions of personal jurisdiction in suits brought against foreign and other non-local defendants, most recently, in BNSF Ry. Co. v. Tyrrell, No. 16-405, 2017 WL 2322834 (U.S. May 30, 2017).

[editor’s note − see our BNSF post here]

However, it may have become easier for plaintiffs to invite foreign manufacturers to the party here in the US based on the Court’s recent liberal interpretation of the Hague Service Convention, 20 U. S. T. 361, T. I. A. S. No. 6638 (1965), which governs service of process on foreign entities.  Until now, effecting service upon a defendant based in another country has been an inconvenience, if not an outright impediment.  Many US courts held that the only proper means of service under the Convention was to serve the complaint upon the “central authority” of that country, requesting that central authority to then serve the complaint upon the defendant in the manner under which service is customarily performed under that country’s laws.  The Convention also provided that the Convention “shall not interfere with—(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.”  Many US courts concluded that this provision, Article 10(a) of the Convention did not authorize service of process by mail because it only referred to the right to “send” documents, not to “serve” them.

But the Supreme Court disagreed late last month.  Water Splash, Inc. v. Menon, No. 16-254, 2017 WL 2216933 (U.S. May 22, 2017), arose from a seemingly simple dispute between the manufacturer of playground equipment and a former employee.  The employee was allegedly working for one of Water Splash’s competitors while still employed by Water Splash.  Water Splash sued in Texas state court, but the former employee lived in Canada.  Water Splash served her by mail, in accordance with Texas law.  She did not appear.  The trial court entered a default judgment.  She then moved to set aside the judgment, but the court denied her motion.

The Supreme Court held that, as long as service by mail is performed in compliance with the forum’s law, Article 10(a) of the Hague Service Convention permits such service by mail on foreign defendants unless the country in which service was made has objected to this type of service.  Article 10(a) provides that the Convention will not interfere with “the freedom to send judicial documents, by postal channels, directly to persons abroad,” but does not expressly refer to “service.”  For decades, the lower courts had split over whether this provision extends to service of process or is limited to service of other documents and pleadings.  Compare, e.g., Bankston v. Toyota Motor Corp., 889 F. 2d 172, 173-74 (8th Cir. 1989) (holding that sending summons and complaint to defendant in foreign country does not constitute valid service under Hague Convention) with Brockmeyer v. May, 383 F. 3d 798, 802 (9th Cir. 2004) (holding that the meaning of “send” in Article 10(a) includes “serve.”).

The question whether the Hague Convention permits service by mail has now been answered.  The answer is a qualified “yes,” as long as such service complies with the forum’s service requirements and that the country where the defendant is located did not object to Article 10(a).  This broader acceptance of international service via mail may, by lowering procedural barriers to entry, have the unfortunate effect of haling more foreign manufacturers or foreign parent companies into US Courts.

Water Splash does not eliminate all opportunities for defendants to avoid claims brought against foreign manufacturers, however.  A variety of other remedies are still available to a foreign defendant.  Most notably, Plaintiffs may mistakenly try to extend this ruling to effect mail service on a defendant in a country that has not ratified the Convention, or that has objected to such service.  Or, the plaintiff may fail to effect mail service in compliance with forum law.  The Hague Convention does not render such service sufficient.

Moreover, even if a US Court upholds service against a foreign defendant under the US’s liberal interpretation of the Hague Service Convention, a judgment might be unenforceable in the courts of the foreign defendant’s domicile.  Foreign courts may refuse to enforce a judgment entered in the US by deciding that the American court lacked personal jurisdiction over the local defendant.  Or, in some signatory countries (most notably Japan), that did not object to the Hague Service Convention, courts may not enforce a foreign judgment where service did not comport with the Hague Service Convention by including a copy of the summons and complaint in Japanese.

More traditional errors, too, can still render mail service on foreign companies ineffective to sustain a lawsuit in the US.  For example, a plaintiff serving a foreign entity may underestimate the time required to serve that entity, even if the service is performed by mail.  If the complaint is not properly served within the time provided by the forum state’s state statute of limitations and whatever state-law tolling provision allows for relation back of service, the claim can be dismissed.  See Walker v. Armco Steel Corp., 446 U.S. 740, 750 (1980); Bancorp Leasing & Fin. Corp. v. Agusta Aviation Corp., 813 F.2d 272, 274 (9th Cir. 1987).

But in significant cases, where the stakes are high and the plaintiffs’ counsel is more competent, the Water Splash decision suggests that more foreign manufacturers may have to learn to swim in American waters.

 

We pointed out earlier that Bristol-Myers Squibb Co. v. Superior Court, No. 16-466 (“BMS”), was not the only personal jurisdiction matter on the Supreme Court’s docket this term.  Argued the same day as BMS was BNSF Railway Co. v. Tyrell, a Federal Employees Liability Act (“FELA”) personal injury case raising some similar personal jurisdiction questions – but not the unprecedented expansion of “specific” personal jurisdiction presented by BMS.  We opined in our prior post that for all the difficulties that the plaintiffs in BMS encountered at oral argument, the plaintiffs in BNSF (there were two consolidated cases) had it even worse:

[W]e frankly can’t see a path to affirmance for the plaintiff in BNSF.  It could well be a unanimous reversal of the Montana Supreme Court, albeit with at least one concurrence offering a different rationale (similar to Bauman).

For the full post, go here.

BNSF was just decided, here’s the link to the opinion, and that’s pretty much what happened – reversal with only one justice (Sotomayor) concurring in part and dissenting in part – as was the case in Bauman.  Also as in Bauman, Justice Ginsburg authored the opinion of the Court.

Briefly, since we discussed the facts in BNSF before, two plaintiffs sued the defendant for personal injuries under FELA in Montana state court despite:  (1) neither plaintiff being a Montana resident; (2) neither plaintiff being injured in Montana; and (3) the defendant being neither a Montana corporation nor headquartered in Montana.

By 8-1 the Court held no personal jurisdiction. The first part of BNSF was about issues peculiar to the FELA statute.  We’ll skip that – except to point out that the Court once again cautioned – as it did in Bauman – that personal jurisdiction decisions predating International Shoe Co. v. Washington, 326 U.S. 310 (1945), were of doubtful validity:

[A]ll these cases [cited by plaintiffs] were decided before this Court’s transformative decision on personal jurisdiction in International Shoe.  See Daimler, [which we call Bauman] 571 U.S., at ___, n.18 [134 S.Ct. 746, 761] n.18) (cautioning against reliance on cases “decided in the era dominated by” the “territorial thinking” of Pennoyer v. Neff, 95 U.S. 714 (1878)).

BNSF, slip op. at 9 (citations rejiggered).

After disposing of the FELA issues, BNSF turned to the Montana law issues.  The Montana Supreme Court had relied on the Montana “Long Arm” statute, which provided for the exercise of general jurisdiction over all persons “found within” the state.  Id. The terms of the statute didn’t matter much since the correct question was “whether the Montana courts’ exercise of personal jurisdiction under Montana law comports with the Due Process Clause of the Fourteenth Amendment.”  Even though it was undisputed that the defendant was “found within” Montana under the statute, there was no jurisdiction for the rather transparently obvious reason that no state statute could go beyond what constitutional Due Process permitted:

[T]he business [defendant] does in Montana is sufficient to subject the railroad to specific personal jurisdiction in that State on claims related to the business it does in Montana. But instate business, we clarified in [Bauman] and Goodyear, does not suffice to permit the assertion of general jurisdiction over claims like [plaintiffs’] that are unrelated to any activity occurring in Montana.

Id. at 11-12 (footnote omitted).

For DDLaw’s purposes, not specific to railroads, that’s the most significant aspect of BNSF.  Some courts, most notably Bors v. Johnson & Johnson, 208 F. Supp.3d 648 (E.D. Pa. 2016), which we discussed here, seem to have overlooked the point that a peculiarly worded state statute simply cannot override the Due Process constraints enforced in BNSF and Bauman.  Thus, that the unusual language of a state enactment (Pennsylvania’s corporate registration statute) in Bors could be read to allow personal jurisdiction (in Bors “consent” jurisdiction) beyond the Due Process limits of Bauman means nothing.  State statutes cannot extend personal jurisdiction to unconstitutional extremes – as BNSF held with respect to the “found within” language in Montana’s Long Arm statute.

Thus, although BNSF did not reach the issue of jurisdiction by consent, slip op. at 12, its rationale should be fatal to decisions like Bors that purport to hold that a state statute can authorize an otherwise unconstitutional scope of personal jurisdiction.

While we are waiting for the Supreme Court to rule in Bristol-Myers Squibb Co. v. Superior Court, No. 16-466 (“BMS”), an interesting thing happened.  Last week in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, ___ S.Ct. ___, 2017 WL 2216934 (U.S. May 22, 2017), the Court interpreted the federal venue statute peculiar to patent litigation, 28 U.S.C. §1400(b), to restrict the ability of patent plaintiffs to bring their cases anywhere in the country.  2017 WL 2216934, at *7.  Reaffirming the viability of a 60-year- old decision, Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), the Court held that patent infringement actions could only be brought where the defendant “resides,” which in the case of corporations meant only where they were incorporated.  2017 WL 2216934, at *7.

A lot has been written already about how TC Heartland means the demise of the Eastern District of Texas as the equivalent of Madison County, Illinois for patent litigation.  That is not our sandbox, and we’re not here to discuss that.  For our purposes, we’re intrigued by the Court unanimously restricting – albeit under a federal venue statute, not the Due Process Clause of the Constitution – widespread plaintiff-side forum shopping leading to suits piling up in particular magnet jurisdictions.  From a policy standpoint, that’s also what BMS is about.

Indeed, we tangentially encountered patent-based forum-shopping before. In this post, we discussed a decision of the Federal Circuit in a patent case, Acorda Therapeutics Inc. v. Mylan Pharmaceuticals, Inc., 817 F.3d 755 (Fed. Cir. 2016), which involved a related question of personal jurisdiction − that a defendant’s “plans to market its proposed drugs” in a jurisdiction were enough to support jurisdiction under minimum contacts/specific jurisdiction analysis in patent cases. Id. at 762-63.  We weren’t concerned with that patent-specific proposition.  Rather, we were interested in the alternative argument – ultimately avoided in Acorda – that sought to assert general jurisdiction under Delaware law simply because the defendant had registered to do business in the state and thereby supposedly “consented” to be sued there for anything by anyone.  The only reason expansive personal jurisdiction arguments were being made in Acorda was to support the equally expansive notions of venue in patent cases that TC Heartland has just consigned to the dustbin of legal history.

In any event, that alternative argument in Acorda is now moot because only a month later (to the day), the Delaware Supreme Court rejected jurisdiction by consent under state law in Genuine Parts Co. v. Cepec, 137 A.3d 123, 147 (Del. 2016) (holding that Bauman “indicates that such a grasping assertion of state authority is inconsistent with principles of due process”).  The Acorda situation does demonstrate, however, the relationship between the expansive notions of personal jurisdiction before the Supreme Court in BMS and the expansive notions of venue that bit the dust in TC Heartland.

There is one other interesting point that we learned reading TC Heartland.  We had never had much occasion to consider the general federal venue statute, 28 U.S.C. §1391(c), that was the principal basis for the expansive venue arguments that the Court rejected in TC Heartland.  The Court quoted that statute:  “[f]or purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.” TC Heartland, 2017 WL 2216934, at *6 (emphasis added).

Thus, the general federal venue statute – applicable to all federal question actions where (unlike the patent statute) the applicable statute does not contain its own venue provisions – is dependent on where a corporation is “subject to personal jurisdiction.” That’s what is before the Supreme Court in BMS.  Thus an unremarked upon (at least by us) aspect of BMS is that the Court’s decision will also determine the scope of available venues available to federal plaintiffs in any number of situations having nothing to do with product liability.  That may be of interest to corporations, particularly if personal jurisdiction was waived in a particular case, but a motion challenging venue is still appropriate.  It may also be of interest for other reasons peculiar to federal claims that we’re not familiar with.  In any event, we invite our readers, in-house and otherwise, to think about this possible aspect of BMS for a moment.

This post comes from the Cozen O’Connor side of the blog.

Plaintiffs and defendants have now completed briefing before the Fifth Circuit on defendants’ appeal of the $498 million verdict in the second bellwether trial of the Pinnacle hip implant MDL. Obviously, there is a lot riding on this appeal. In March, we laid out for you the manner in which defendants’ opening brief addressed certain key issues. Below, we discuss the defendants’ responses, in their reply brief, to the arguments that plaintiffs make on those key issues in their opening brief:

Design Defect Verdict: While defendants have offered a number of reasons to overturn the verdict on design defect, the survival of that portion of the verdict could very well turn on whether plaintiffs can convince the Fifth Circuit that an allegedly safer alternative design for DePuy’s metal-on-metal hip implant, a necessary element of a design defect claim, can be an entirely different product—a metal-on-polyethylene hip implant—one that is already marketed by DePuy. In our experience, an entirely different product cannot serve as an alternative design. Here is a portion of defendants’ discussion of this failing in their reply brief:

To prevail on their design-defect claims, plaintiffs were required to prove that a safer alternative design existed for the Pinnacle Ultamet. Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 384 (Tex. 1995). Yet plaintiffs do not argue that the Ultamet should have been shaped differently, secured differently, made of a different metal alloy, or altered in some other way. Instead, plaintiffs argue that the safer alternative design is the Pinnacle AltrX, an existing metal-on-polyethylene hip implant. The question here is whether that metal-on-polyethylene hip implant—which already exists and, indeed, is manufactured and sold by DePuy—is an “alternative design” for the Pinnacle Ultamet, or is instead an “entirely different product.” Brockert v. Wyeth Pharm., Inc., 287 S.W.3d 760, 770 (Tex. App.—Houston [14th Dist.] 2009).

Brockert provides the answer. In Brockert, the plaintiff argued that an “alternative design” for a drug combining estrogen with progestin was a drug containing only estrogen. Id. at 769. There, like here, that proposed alternative already existed and, again like here, was manufactured by the defendant. Id. The Fourteenth Court of Appeals held that plaintiff’s claim failed because she did not show how the defendant’s drug “could have been modified or improved”; she instead argued that the drug should be an entirely different product—i.e., the one defendants already made. Id. at 770-71. . . .

Plaintiffs attempt to distinguish Brockert and Caterpillar by noting that the proposed alternatives in those cases “impaired the product’s utility.” But that is no distinction at all: plaintiffs’ proposed alternative design here would impair the Ultamet’s utility by eliminating precisely the feature that makes it distinctive and an arguable improvement over pre-existing products. Plaintiffs do not deny that metal is more durable than plastic, making metal-on-metal implants a more “attractive option for the younger, high-demand patient who was wearing out their plastic previously.” Nor do they dispute that metal-on-metal implants eliminate plastic debris. Texas law requires plaintiffs to propose an alternative design that replicates those benefits, not just any two benefits they can conjure up. In short, plaintiffs were required to propose a safer alternative design for a metal-on-metal hip implant, but they instead pointed to a different product altogether, which is precisely what Texas courts have held that plaintiffs may not do.

(Defendants’ Reply Br. at 3-6.)

Failure to Warn (Marketing Defect) Verdict: In their opening brief, defendants argued that their Instructions for Use sufficiently warned about the risks that form the basis of plaintiffs’ claims, while plaintiffs’ opening brief argues that those warnings needed to be more specific. While we believe that defendants have the better of that argument, they appear to have even stronger arguments as to plaintiffs’ failures to offer expert testimony on causation or prescriber testimony on how a different warning would have changed their decisions to use the Pinnacle metal-on-metal hip implant. Here are key excerpts from defendants’ reply brief on these issues:

[Lack of Expert Opinion]

Regardless, plaintiffs can prevail under Texas law only if they established with expert testimony that the warnings were inadequate, and they did not do so here. Plaintiffs do not dispute this requirement, instead contending that Dr. Matthew Morrey’s testimony satisfied their burden. But Dr. Morrey was never tendered or admitted as a warnings expert at trial. Plaintiffs attempt to dance around that problem by stating that they designated Dr. Morrey as a warnings expert before trial, but the district court never evaluated his qualifications to be a warnings expert or admitted him as a warnings expert, and his testimony therefore cannot carry plaintiffs’ burden.

[Lack of Prescriber Testimony]

Greer: Greer’s surgeon, Dr. Goletz, did not testify at trial. . . .

Peterson: Peterson’s surgeon, Dr. Schoch, also did not testify at trial. . . .

Christopher: Plaintiffs do not dispute that Christopher’s surgeon, Dr. Kearns, “never read an [IFU] on the Pinnacle Ultamet” and did not know what the IFU said “regarding risks for the implantation of these devices.” . . .

Klusmann: Plaintiffs assert that Klusmann’s surgeon, Dr. Heinrich, testified that additional information “would have changed how he treated Klusmann.” But Heinrich did not say he would have used a different hip implant; he said only that he would have evaluated Klusmann’s post-implant symptoms differently. Dr. Heinrich never testified that he would have used anything other than the Ultamet, and in fact testified that he was aware of the risk of metal ions attacking tissue, but used the Ultamet anyway.

Aoki: The only testimony plaintiffs cite about Aoki is her statement that Dr. Heinrich told her the Ultamet could last “up to 20 years and perhaps life.” But that testimony does not prove that Dr. Heinrich would have used a different implant if DePuy provided different warnings, especially in light of his testimony that he was aware of the Ultamet’s risks. . . . .

(Defendants’ Reply Br. at 10-14.)

Verdict against J&J: Defendants’ reply brief surgically attacks plaintiffs’ arguments on why the trial court could maintain personal jurisdiction over DePuy’s parent company, J&J, as well as plaintiffs’ theories for ultimately holding J&J liable. Plaintiffs’ personal jurisdiction arguments appear to be different from those raised at trial (and therefore waived) and to rely on exhibits that, in some cases, were not even admitted at trial and acts that were not committed by J&J itself, but instead by its subsidiaries. Plaintiffs’ opening brief also struggles to support the viability of their substantive claims against J&J, including how plaintiffs can turn an affirmative defense for a non-manufacturing seller into a cause of action. Here is how defendants sum up these problems in the introduction to their reply brief:

Plaintiffs’ efforts to justify J&J’s presence in this case are no more persuasive. They abandon their previous personal-jurisdiction arguments for new ones, asking this Court to adopt a stream-of-commerce theory so expansive it would bring every parent company into any litigation involving a subsidiary. They try to buttress that argument with lengthy footnotes full of string-cites to evidence either not in the trial record or not what they claim, but super-sized footnotes are no substitute for minimum contacts, which are plainly lacking. And even if they could establish jurisdiction, plaintiffs have no viable claims against J&J. They do not point to a single Texas case holding a defendant liable in tort for a “nonmanufacturing seller” claim or an aiding-and-abetting claim, and they fail to show that J&J undertook a duty for their protection or that they relied on its performance.

(Defendants’ Reply Br. at 1.)

Highly Inflammatory, Irrelevant and Unduly Prejudicial Evidence: This is the BIG issue, the one that raised so many eyebrows as the trial moved on. In their opening brief, plaintiffs try to calm those reactions by underplaying their use of this evidence at trial and its importance to the verdict. But the defendants reply brief reacts effectively to this tactic, providing detail on plaintiffs’ repeated, not limited, used of this evidence, so much so that it formed a central component of their presentation to the jury. Here is how defendants address this issue in, once again, the introduction to their reply brief:

Plaintiffs’ defense of the inflammatory evidence they introduced at trial is to assert that each transgression was not that inflammatory. After all, they referenced Saddam Hussein in only “a handful of exchanges,” linked defendants to tobacco and asbestos companies while questioning only “one defense expert,” invoked the threat of cancer for only “three-and-a-half pages of testimony,” implied just “twice” that the Ultamet could lead to suicide, told the jury that plaintiffs considered jumping off a bridge for a mere “five lines of argument,” mentioned the thousands of other lawsuits in the MDL only “on five occasions,” and discussed transvaginal mesh lawsuits brought by “45,000 women” for only “12 lines of testimony.” The suggestion that the combined effect of all this profoundly prejudicial evidence was marginal does not pass the straight-face test; indeed, the best indication of the importance of this evidence is that fact that plaintiffs’ counsel repeated all of it in his closing statement to the jury. Inflaming the jury’s passions through irrelevant evidence was not just a happenstance but a core component of plaintiffs’ trial strategy, and the gargantuan verdict shows the success of that strategy.

(Defendants’ Reply Br. at 2.)

Next comes oral argument and then the Fifth Circuit’s decision. And that decision will, quite obviously, have a major impact on the future of an MDL that without appellate intervention appears destined to produce more and more massive verdicts.

 

Last week, the United States Supreme Court also heard argument in the “other” litigation tourist personal jurisdiction case pending before it – BNSF Railway Co. v. Tyrell, No. 16-405 (U.S. argued April 25, 2017) (“BNSF”) (link to transcript).  While BNSF mostly concerned statutory issues under the Federal Employees Liability Act (“FELA”), it does involve a personal jurisdiction question related to litigation tourism.  The Court considered it sufficiently related to BMS that it scheduled oral argument back-to-back with BMS (see here for last week’s post on the BMS oral argument).  Because we’re interested in personal jurisdiction as a constitutional check on the litigation tourism phenomenon, we’ve also taken a look at what went down during the BNSF argument.

Once again the United States government appeared as amicus supporting the defense.  Tr. at 1, 12-18.  It appears to us that the plaintiff in BNSF had an even tougher time before the Court than the plaintiffs in BMS – and that’s saying something.  Another perhaps notable aspect of the oral argument was that the Justices, particularly as to the defense and defense-supporting United States arguments, were a lot less engaged than in BMS.  These counsel actually argued for entire pages of transcript without being interrupted by questions.  Indeed, the defendant’s rebuttal argument in BNSF drew no questions at all, and thus the defense used only a fraction of its reserved time.  Id. at 43-44.  The entire BNSF transcript was 44 pages – 20 pages (almost 1/3) shorter than BMS.

Justice Sotomayor, the sole dissenter from the personal jurisdiction rationale in Daimler AG v. Bauman, 134 S.Ct. 746 (2014), seemed most animated when discussing an issue that was not even before the Court in BNSF – nonconsensual “consent” to general jurisdiction by virtue of mere registration to do business in a state.  Tr. at 4-6.  We’ve written on this Bauman dodge before, and were somewhat perplexed to see it arise in a United States Supreme Court argument – until we heard from Chief Justice Roberts:  “[T]he issue . . . was not addressed below and is not before us.”  Id. at 6.  Whew!   We thought we’d missed something significant.

The heart of the plaintiff’s argument was that FELA, in provisions that spoke only to venue (it’s a peculiar statute in that it allows plaintiffs to choose to bring federal claims in state court), somehow also authorized an expanded form of personal jurisdiction that permitted litigation tourism.  We gathered from the argument that the plaintiff was a North Dakota resident claiming workplace injuries in Washington State, id. at 40 – so of course, he sued the defendant in Montana, which was neither the defendant’s principal place of business nor its state of incorporation.

Since BNSF was a statutory case, the Court was interested in whether Congress could authorize litigation tourism by statute.  The defense response was that Congress could authorize nationwide service of process allowing expanded federal court jurisdiction, should it choose to create a federal cause of action, but that Due Process would render problematic any attempt to expand state-court personal jurisdiction to accommodate litigation tourists.  Tr. at 8.  The fundamental problem with the plaintiff’s statutory argument was put most succinctly by the Assistant Solicitor General arguing for the government:

[T]here’s a strong Federal interest in not having words that don’t say anything about service of process being interpreted to in fact say something about service of process[.  W]e have a first sentence that refers to venue only in Federal courts, and then a second sentence referring to State courts.  But all it does is to clarify that there’s concurrent jurisdiction in the State courts.  And we just don’t see how you can get to conferral of personal jurisdiction in the State courts.

Tr. at 13.

Nobody, not even Justice Sotomayor, the justice most sympathetic to litigation tourism, seemed comfortable with that argument. The statutory argument was criticized by:

Chief Justice Roberts:  Tr. at 23-24, 29-30.

Justice Ginsburg:  Id. at 19-20, 31, 40.

Justice Alito:  Id. at 25-26.

Justice Sotomayor never appeared inclined to support plaintiff’s statutory argument in BNSF.  Rather, she suggested that “we could just say it [FELA §56] doesn’t apply to State courts,” id. at 37 – which was precisely where the plaintiff had sued.

So, aside from the seemingly doomed argument that FELA should be interpreted to say what it didn’t say – and apparently what no federal statute has ever provided – about personal jurisdiction/service of process, what did the argument have to say about Bauman and Due Process?

The government argued that “[i]f the Court’s decisions in Goodyear and Daimler mean anything,” it “just can’t be correct” that “a company like BNSF is subject to general personal jurisdiction in 28 or more States.”  Tr. at 14.  Justice Breyer did not “really see the difference” between Bauman and BNSF.  Id. at 38-39.  Justice Kagan tried to limit the plaintiff’s non-statutory personal jurisdiction argument to railroads being “so unique that they should be subject to general jurisdiction everywhere.”  Id. at 32.  After some hemming and hawing plaintiff agreed, id. at 34, but plaintiff seemed even more interested in a fact-specific, Montana-only exercise of Bauman personal jurisdiction.  Id. at 33, 36 (arguing that the defendant was “at home” because it had Montana “lobbyists”).  Unlike the plaintiffs in BMS, the plaintiff in BNSF was never so bold as to call for overruling Bauman.

Finally, when pushed by Justice Gorsuch, plaintiff abandoned altogether the argument that Bauman be limited to “foreign corporations.”  Id. at 41-42.

We’ve been burned making Supreme Court predictions before, but we frankly can’t see a path to affirmance for the plaintiff in BNSF.  It could well be a unanimous reversal of the Montana Supreme Court, albeit with at least one concurrence offering a different rationale (similar to Bauman).

 

The other day, the United States Supreme Court heard argument in Bristol-Myers Squibb Co. v. Superior Court, No. 16-466 (U.S. argued April 25, 2017) (“BMS”) (link to transcript).  We’ve blogged many times about the issues in Bristol-Myers-Squibb.  In BMS, the United States government, as amicus curiae, appeared in support of the defense position that personal jurisdiction did not be extend to suits in state courts brought by non-resident plaintiffs against non-resident defendants.

Here’s a description of what went down.

Justice Sotomayor, who had been the sole dissenter from the personal jurisdiction rationale in Daimler AG v. Bauman, 134 S.Ct. 746 (2014), was seemingly hostile to the defense position.  Her initial questioning suggested that not allowing an in-state resident’s successful assertion of personal jurisdiction to supply jurisdiction for out-of-state residents who simply took the same product in their home states somehow destroyed pendent jurisdiction.  Tr. at 5-6.  As we’ve discussed before, pendent jurisdiction typically applies to consolidated claims, not consolidated lawsuits.

Justice Ginsburg (author of Bauman) rode to the rescue, pointing out that general jurisdiction, and perhaps specific jurisdiction where there was a more substantial link than just using a product, would allow plaintiffs from across the country to sue in one place.  Id. at 7.

The defense position (articulated in response to a question from Justice Kagan) was that federalism, predictability, and fairness all weighed against allowing anybody and everybody who took a product to sue in a single state with no connection to the litigation beyond the presence of other, resident plaintiffs. Fairness involved extending state-specific principles – the defense mentioned choice of law, procedural standards, such as for summary judgment, expert admissibility (Daubert), and evidentiary issues – to plaintiffs from other states who had no reason to benefit from California’s peculiarly pro-plaintiff rules.  There was also whether it was fair to have 600+ separate trials in California involving non-residents.  Id. at 10-12.  Fairness, in the Due Process context, does not allow every plaintiff in the country to go forum shopping for the “least common denominator.”  Id. at 14.

There was also the issue of predictability, as discussed in Bauman.  A company incorporating in a particular state, or having a principal place of business in a particular state, such as BMS in New Jersey, expects to be sued there by anyone with a claim.  That is not the case in every other state in the country.  Id. at 15-16.

Justice Breyer asked whether Due Process principles in personal jurisdiction could affect MDL practice and class actions. The response was that federal jurisdictional issues are different, and where federal issues are involved, the minimum contacts analysis at the federal level controls, rather than rivalry between the states, with one state potentially offering more to out-of-state litigants than those litigants’ home states.  Id. at 17-19.  Justice Ginsburg wondered if Congress could expand MDL practice to include trials, and heard that MDL practice could be reserved until that change happened, and the plaintiffs’ anybody-in-any-state could nonetheless fail Due Process, as it should.  Id. at 19-20.

That concluded the defendant’s principal argument, with only Justices Ginsburg, Kennedy, Breyer, Kagan, and Sotomayor being heard from.

Then the United States argued.

The government’s position is familiar to us – because it’s always been our position – that a state cannot recreate the same “exorbitant” and “grasping” scope of jurisdiction under the “specific” rubric that Bauman rejected under the “general” rubric as incompatible with Due Process.  Neither other in-state plaintiffs nor other in-state defendants matter, as jurisdiction is personal to each party.  Tr. at 20.  Justice Ginsburg wanted to know about a California co-defendant.  Unless they were conspiring, jurisdiction is personal to each defendant.  Id. at 21. Justice Kennedy wondered if California plaintiffs could skirt due process by trying to join an out-of-state defendant to an earlier-filed suit against a California defendant by claiming “necessary party” status.  Essentially the same answer.  Id. at 22-23.

In response to Justice Sotomayor, the government stated that, given the realities of the federal system, with jurisdiction over state-law claims determined for states individually, mass torts asserting state-law claims may well not be amenable to a single aggregated forum with all plaintiffs able to sue all defendants. Not so for federal criminal prosecutions.  Id. at 23-25.

The mention of federalism brought Justice Gorsuch forward.  He wanted to know about the implications of the California rationale on other states administering their own procedures for resident tort plaintiffs.  The obvious answer was that all states have equal interest in adjudicating conduct occurring within their borders (such as drug sales and marketing).  Id. at 25-26. Justice Kagan wanted to know whether the residence of the plaintiff or the residence of the defendant was the concern.  The government’s counsel responded that either of those states had a strong interest sufficient to support jurisdiction, with the implication that other states do not.  Id. at 26.

Justice Kagan then made an important point – that the interest of the plaintiff’s home state becomes “attenuated” where the plaintiff has abandoned his/her own state and gone elsewhere – it was “weak to say that the State has a very strong interest in protecting its own citizen that doesn’t want to be there.”  Id.  Justice Kennedy added the flip side of federalism, “State A has a very strong interest in confining State B to State B’s territorial….”  The flow was interrupted by the government’s quick agreement.  According to the Justice, states are limited territorially, whereas the federal government is not.  Id. at 27.

Justice Breyer then had a tall order − asking for the government’s “solution to mass torts.” Id. at 28.  The government’s position was that state-law mass torts can be brought according to the limits of general jurisdiction, as can MDLs.  If a “particular” mass tort is not being adequately handled by state law, Congress could step in.  Id.  Justice Ginsburg asked if the government was arguing that Congress could “create a nationwide claim.” Id. at 29.  The government agreed that Congress had that prerogative in the mass tort field.

Justice Alito asked the final question of the government, asking how it would “phrase the rule” being sought.  The government’s response:

[T]he Court could simply say in this case that for purposes of specific jurisdiction, when we’re talking about conduct that arises out of . . . activity within the forum, there has to be something that’s connected to the claim, some causal connection between the individual claim . . . and the forum, the parties in the forum.

Tr. at 30.

Then it was time for the plaintiffs to argue.

Plaintiffs asserted four bases for personal jurisdiction: (1) the defendant exploited the California market; (2) litigation in California did not create significant additional burdens on the defendant, which would be defending litigation there in any event; (3) a governmental interest in aggregating mass torts.  Counsel didn’t get to four.  Id. at 30-31.

The idea of a governmental interest in aggregating mass torts in a single state stuck in a lot of craws. Justice Kennedy wanted to know which state had that interest.  Justice Ginsburg opined that single-forum aggregation was “impossible” as long as plaintiffs get to choose where to sue.  Id. at 31-32.

Actually, plaintiffs did get to four, only several pages later. The fourth being the presence of a California defendant as an alleged nationwide distributor.  Id. at 32-33.

However, as Justice Kagan pointed out, the California distributor was not common to all plaintiffs. Plaintiffs had to admit that it was “impossible” to trace the distribution of any given individual’s pills.  Id. at 33.  That meant that the involvement of a California distributor was not a case-specific fact, but only of general significance.

Plaintiffs tried to respond to Justice Ginsburg, arguing for an interest in “allowing the litigation to be centralized,” which they asserted was preferable to litigation in multiple states.  Justice Kennedy found that statement to be “a very patronizing view of federalism” that ranked some states (such as California) over others.  “[T]hat’s not the idea of the Federal system.  The Federal system says that States are limited.” Id. at 34.  Chief Justice Roberts, and Justices Kennedy and Ginsburg agreed that plaintiffs’ reliance on the Keeton libel case was not well taken because that case involved in-state injury, and even then was “peculiar to” or “sui generis” in libel cases.” Id. at 34-36.

Interrupting plaintiffs’ explanation of why a libel rule was pertinent, Justice Kagan looked to the other side of the “v.”

Well, how about the interest of the State that Bristol-Myers resides in? In other words, they might have an interest in not having their citizens hailed [sic] into court against their will in another part of the country.

Tr. at 37. Plaintiffs disagreed and attacked the defendant’s suggestion that plaintiffs not wanting to sue in their own states could bring suit in New Jersey.

That answer led Justice Breyer to expound on the differences between general and specific jurisdiction, whereby defendants could be sued in states where they actually caused the plaintiff’s harm, but not in states where they did not. Jurisdiction thus depended on which states had a “special federalism interest” – a defendant’s “home” state having such an interest.  Id. at 37-38.

Plaintiffs responded that New Jersey as a forum meant that plaintiffs there were not suing in their home states, which overlooked the fact that they always could sue in their home states.  Plaintiffs were more interested, however, in highlighting their joinder of a California defendant.  Justice Gorsuch wasn’t impressed, finding that to be too “fact-specific” when the question before the Court was “whether we have some sort of causation requirement or permit this sliding scale business that California engages in.” Id. at 38.  He thought plaintiffs were attempting to “collapse” the prongs of “purposeful availment” and “fairness,” removing all the “bite” from the former – which “suggest[ed] some problem doctrinally” with the plaintiffs’ position. Id. at 39.

Plaintiffs rejected any causation requirement, asserting that they only needed to show “continuous and systematic exploitation” of the market and that each claim be “on the same operative facts.” Id. Justice Kagan was skeptical:

[T]hat’s like saying . . . that the claim relates to another claim that relates to contacts with the forum. . . .  I’m missing what the relationship is between an Ohio plaintiff’s claim and the defendant’s contacts with the forum that doesn’t go through another claim.

Tr. at 39. Justice Kagan thought that specific personal jurisdiction involved claims that arose from the defendant’s contacts with the state in that particular case, not on some general basis.

Plaintiff’s response that “the relevant contact is the nationwide activity” of marketing the drug.  Id. at 40.  Because the activity was national, any state in the country, such as California, could equally adjudicate the “same conduct.”  Id. at 41.  That, and don’t forget the California defendant that plaintiffs decided to sue.  If plaintiffs can find an in-state defendant to sue in whatever jurisdiction they choose, that state can assume jurisdiction over any plaintiff’s similar claim, wherever in the country that plaintiff may be located.  Id. at 41-42.

Justice Ginsburg returned to the issue of class actions – could this be a class action, and if so where could it be brought. Plaintiffs’ answer was California, because of the California defendant.  Id. at 42-43.

Plaintiffs then tried to make some hay about there being a “special master” for cases across the country.  Id. at 43-44.  However, they appear to concede that this “master” was “best regarded as Federal,” so that didn’t help much with their state-law arguments.  Id. at 44.  That concession led Justice Breyer to suggest that the “answer” to this “terrible problem for mass torts” is to “[b]ring your case in Federal court.”  Id. at 44-45.  “[T]he solution to this great mass tort problem is that’s what Federal courts are for.”  Id. at 45.  However, as Justice Ginsburg pointed out “there’s no complete diversity” since plaintiffs saw fit to join a California defendant.  Id. at 46.  However, plaintiffs “could redesign the case” to fix that problem.  Id.

Plaintiffs, of course don’t want to be in federal court, and did what they did in BMS specifically to avoid that.  So they effectively abandoned their efficiency arguments when federal court was the alternative and argued that just because there was a more efficient way didn’t mean their way violated Due Process.  “[Y]es, there are other ways to do it, but that doesn’t make the way we are doing it unconstitutional.  What the Court has talked about here is minimum due process.”  Id. at 47.

Chief Justice Roberts then changed the subject, looking for a “simple” jurisdictional rule.  Id.  A sliding scale, suggested in Plaintiffs’ papers, where some percentage of out-of-state plaintiffs passed muster, whereas a smaller (unstated) percentage would not, would be hard to administer.  Plaintiffs’ response was that everything should be decided “case-by-case” and Due  Process imposed no “categorical rule.”  Id. at 48.  The Chief rejoindered, “but you’re articulating a rule that requires businesses trying to figure out where to do business and plaintiffs where to sue,” so what was the line? Id. Plaintiffs were unable – or unwilling − to give one.  Justice Kagan then took Plaintiffs’ reluctance to its logical conclusion:

[O]n your theory, it could be zero California plaintiffs, because . . . [y]ou told me . . . that an Ohio citizen’s claim arises out of the contacts in California is because the contacts in California are really nationwide contacts. And if that’s so, it’s met regardless of whether there are any California plaintiffs are not.

Tr. at 50. “Right,” Plaintiffs agreed.  Id.

Perhaps sensing that he had gone too far, Plaintiffs’ counsel started to backtrack, but Justice Sotomayor wouldn’t let him.  She asked for Plaintiffs’ definition of “relating to.”  Id. at 52.  Getting the expected definition, which involved only the “same conduct,” without any causation requirement, that led Justice Sotomayor to comment, “[s]o is that a yes to Justice Kagan’s question about it wouldn’t matter if there were no California plaintiffs?”  Id.  Plaintiffs’ response was that the first prong of Due Process (fairness, we think) would be satisfied, but not the reasonableness prong.  Justice Gorsuch followed up:

[If you don’t need a single plaintiff to satisfy the first prong of the due process inquiry, again, what function does that first prong have left to do?  Why doesn’t it all just run into the second fundamental fairness test?

Tr. at 53.  After some word salad, Plaintiffs got to their basic point – they were seeking a redefinition of Due Process – apparently a return to Pennoyer v. Neff, 95 U.S. 714 (1877), so that California could adjudicate claims against any defendant, to the extent that the defendant had property in the state.  Thus, they asked that both Bauman and Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011), be overruled.  Tr. at 53–54.

Notwithstanding these arguments, Plaintiffs denied that they were trying to accomplish through specific jurisdiction what Bauman had – in the middle of the case – eliminated under the rubric of general jurisdiction.  All well and good, Justice Breyer thought, but what is the one-sentence basis for personal jurisdiction in this case?  The answer, “You’re already here on this claim, and there is nothing unfair about having you . . . with respect to another plaintiff, because that plaintiff could quite clearly get you estopped.”  Id. at 56.  Justice Breyer summed it up, “[s]o once I’m here, I can now sue him.”  Id.  Plaintiffs then discussed “nonmutual offensive collateral estoppel.”  Id. at 57.

Chief Justice Roberts did not seem convinced.  “[T]he same thing’s going to happen in every other State.  I don’t see that it increases the efficiency at all.”  Id.  Plaintiffs responded by returning to bootstrap argument – that because we chose to join a California defendant, that gave California a leg up over any other state.  Id. at 58.  After further discussion of MDLs, Plaintiffs finished their argument by asserting their maximalist position − restoring Pennoyer, at least as an alternative basis of jurisdiction:

It doesn’t seem unfair to me to say his clients did almost a billion dollars’ worth of business in the State of California. They have enormous assets that they have placed in the State.  That they could be held liable up to the extent of those assets is not a violation of due process.

Tr. at 60.

In rebuttal, defendant pointed out that joinder of the California defendant was a red herring, since Plaintiffs admitted they could not prove that defendant distributed any particular plaintiff’s medication.  It is “plainly unconstitutional to exert [sic] jurisdiction over one defendant based on the activities of another.”  Id. at 62.  An out-of-state defendant could be liable to actual California residents for any injuries they suffered – for the entire $918 million in sales (Plaintiffs’ “almost one billion”), but those in-state injuries don’t confer jurisdiction in other, distinct cases with different, non-resident plaintiffs.  In response to Justice Sotomayor’s question, the defense clarified that it didn’t matter who distributed any particular pill in California, the defendant’s manufacture of then was what established specific jurisdiction as to in-state residents.

The defense pointed out that, under CAFA, federal jurisdiction was already available.  The reason these claims were in state court was that Plaintiffs deliberately structured them to avoid CAFA, by “filing less than a hundred claims in each action.”  Id. at 63.  So Plaintiffs themselves brought about the inefficiency of which they complain.  Finally, the defendant ended with a plea for “business predictability.”  Id. at 64.

What do we think?  Predictions are always dangerous, particularly if they involve the future.  However, we sensed no groundswell on the Court to overturn decades of personal jurisdiction precedent and return to Pennoyer.  In fact, we don’t think that the lineup will be much different from Bauman – which was an 8-1 decision from 2014.  Eight-1 decisions just aren’t overruled that soon after being decided.  The Plaintiffs’ efficiency arguments are undercut by their original forum-shopping.  Their fairness arguments are undercut by the fact that every plaintiff could sue in his or her home state, or if aggregation were important, where the defendant is “at home.”  The California court’s mid-course correction from general to specific jurisdiction after Bauman was decided does look like a “backdoor” move to avoid that precedent – which Plaintiffs alternatively seek to overrule.  Our gut tells us that the votes are there to reverse, perhaps with a statement like that in PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011), that Congress can act to federalize mass torts (like it did interstate tort class actions under CAFA) if it so chooses.

In any event, we’ll know if we’re on target – or just all wet – in a couple of months at the most.

Today’s guest post is from friend-of-the-blog Sarah Bunce, a partner at Tucker Ellis.  It’s about the 8th Circuit finally having before it aspects of the effects of the current, bizarrely applied Missouri joinder and venue rules (see here) on federal jurisdiction.  Not only is it about time, though, it may be past time.  By the time that the 8th Circuit gets around to deciding the case, either (1) the Missouri Supreme Court might have overturned the current reading of those rules, (2) the United States Supreme Court may held the exercise of personal jurisdiction allowed by those rules unconstitutional, or (3) the Missouri legislature might have rewritten the rules to eliminate the basis for the current bizarre judicial rule constructions.  But, in any event, that there’s finally movement on another piece of the litigation puzzle.

As always, our guest poster is entitled to 100% of the credit, and any blame, for what follows.

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While most of us wait anxiously for the Supreme Court to hear the issue of litigation tourism at the end of this month in Bristol-Myers Squibb Co. v. Superior Court of California, the Eighth Circuit got a sneak peek on April 5 when it heard oral argument in Robinson v. Pfizer Inc.  Although the Eighth Circuit may well defer decision until the Supreme Court decides the issue, the background of this case and its potential impact on the future of litigation tourism in the Eighth Circuit—particularly in the Eastern District of Missouri—is worth noting.

For those of us who have attempted to remove multi-plaintiff “litigation tourist” complaints from the City of St. Louis to the Eastern District of Missouri, the Eastern District’s response is all too familiar. With the exception of the faint glimmer of hope from Judge Webber in Addelson v. Sanofi S.A., 2016 WL 6216124 (E.D. Mo. Oct. 25, 2016), the court has been rather hostile to such removals, swiftly remanding case after case for lack of subject matter jurisdiction.

The decision in Robinson v. Pfizer Inc. is no exception.  There, sixty-four plaintiffs (only four of whom were Missouri residents) joined in filing suit against Pfizer Inc. in the City of St. Louis alleging injuries as a result of ingesting Lipitor.  As any defendant would do, Pfizer removed the case to the Eastern District of Missouri.  Pfizer argued, under Ruhrgas, the court should first decide personal jurisdiction and dismiss the out-of-state plaintiffs for lack of personal jurisdiction, which would result in complete diversity between the remaining parties.  Pfizer also argued that even if the court considered subject matter jurisdiction first, there would be diversity in light of the fraudulent joinder of the out-of-state plaintiffs.

In granting plaintiffs’ motion for remand, the Robinson court would hear none of it.  Skipping directly to the issue of subject matter jurisdiction, the court (incorrectly) characterized Pfizer’s argument as one based on fraudulent misjoinder rather than fraudulent joinder.  Ignoring entirely the issue of whether there was personal jurisdiction over defendant to support each individual plaintiff’s claims, the court instead viewed the “real issue” to be whether plaintiffs’ claims were properly joined under Rule 20.  Finding the joinder of all sixty-four plaintiffs’ claims proper, the court ordered the case remanded to state court for lack of subject matter jurisdiction.

As those of us who have tried (and failed) to successfully remove multi-plaintiff complaints to the Eastern District of Missouri are keenly aware, this is where the story usually ends. Because these remand orders are not appealable, we’re stuck in an infinite loop of removing cases and being remanded, hoping that the next time will be the time the court decides personal jurisdiction first or thoughtfully considers the fraudulent joinder doctrine (or maybe stays the case pending transfer to an MDL).

But that’s where things get interesting in Robinson.  Plaintiffs (maybe a little too greedily, hindsight being what it is) sought attorney’s fees and costs under 28 U.S.C. § 1447(c), which grants courts the authority to order payment of costs and fees incurred as a result of the removal.  The Robinson court obliged.  Citing nine other cases involving Pfizer and referencing “at least twenty-five other cases” in the district that had been remanded for lack of subject matter jurisdiction, the court determined that, in light of the “repeated admonishments and remands,” Pfizer had no objectively reasonable basis for seeking removal and plaintiffs were entitled to costs and expenses.  Robinson v. Pfizer Inc., 2016 WL 1721143, at *4 (E.D. Mo. April 29, 2016).

This was just the hook that Pfizer needed. While the remand order was not appealable, the sanction order was.  So Pfizer appealed.  In challenging the sanctions and defending its right to remove as objectively reasonable, Pfizer cited Daimler and Goodyear and argued that the Eastern District of Missouri was repeatedly and consistently ignoring those holdings.  Thus, while the removal itself technically may not be before the Eighth Circuit, in the course of ruling on the sanctions issue the Eighth Circuit will have the opportunity to consider the due process merits involved.

And the oral argument demonstrated that the issue of sanctions cannot be divorced from the underlying issue of the removal of multi-plaintiff complaints involving out-of-state plaintiffs. This is because to decide whether the court abused its discretion in awarding costs and fees, the Eighth Circuit necessarily must decide if it was objectively reasonable for Pfizer to challenge the joinder of these plaintiffs and the lack of personal jurisdiction over the out-of-state plaintiffs’ claims.

The Eighth Circuit panel recognized that Pfizer might have had better luck with its argument in other jurisdictions, and on two occasions the panel questioned why the district court had cited only other Eastern District authority and not any authority from other jurisdictions. (Indeed, there is much contra authority outside of the Eastern District of Missouri. See, e.g., Simmons v. GlaxoSmithKline LLC (In re Zofran (Ondansetron) Prods. Liab. Litig.), 2016 WL 2349105 (D. Mass. May 4, 2016); Liggins v. Abbvie Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig.), 2016 WL 640520 (N.D. Ill. Feb. 18, 2016).)  The Eighth Circuit panel also seemed attuned to the underlying issue of allowing joinder to substitute for personal jurisdiction in these multi-plaintiff complaints, referring to it as “osmotic jurisdiction.”

At the end of rebuttal Pfizer requested that the court not only reverse the sanctions order, but also correct the error of law on personal jurisdiction perpetuated in the Eastern District of Missouri—expressly asking the Eighth Circuit to confirm that when looking at personal jurisdiction, it must be done plaintiff by plaintiff. If the Eighth Circuit accepts the invitation, it may be the final nail in the coffin for litigation tourism in the Eastern District of Missouri.

The Defendant/Petitioner has filed its merits brief in the U.S. Supreme Court in BMS v. Superior Court.  This is the case where the California Supreme Court expanded specific personal jurisdiction beyond recognition by basing specific jurisdiction on a pharmaceutical company’s forum contacts involving different products and people other than the plaintiffs.  We wrote about the opinion and its problems here, here, and here, and the opinion came in at number one on our 2016 worst ten list.

As expected, the Petitioner pharmaceutical company has put forth compelling arguments that the California Supreme Court’s version of specific jurisdiction runs against binding precedent and is an all-around bad idea. The Petitioner is also joined by a number of amici, most notably the United States of America.  (You can view all the briefs on the SCOTUSblog here.)  If we have been critical of the Solicitor General in the past, we will voice no concern this time around.  The SG hit the nail on the head, and the United States’ brief reinforces the Petitioner’s very strong arguments—and adds another, which we will get to in a minute.

First, the briefs. The general thrust of both briefs is that the California Supreme Court’s “sliding scale” approach to specific jurisdiction impossibly contradicts binding precedent.  A court simply court cannot base specific jurisdiction on a defendant’s forum contacts involving other individuals and other products, no matter how intense those contacts are.

For the Petitioner, it comes down mainly to one concept—proximate causation. That is to say, for a claim to “arise from or relate to” a defendant’s forum contacts, the defendant’s activities in the state must be a proximate cause of the plaintiff’s lawsuit.  Take, for example, this opening salvo:

The [California Supreme Court] concluded that Bristol-Myers could be haled into California on respondents’ claims merely because Bristol-Myers sold Plavix to other persons and developed other products in the State.

            That is not how specific jurisdiction works.  Since International Shoe Co. v. Washington, 326 U.S. 310 (1945), this Court has made clear time and again that “specific or case-linked” jurisdiction requires a causal connection between the defendant’s forum conduct and the litigation. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).  That bedrock requirement ensures that a common connection links the defendant, the forum, and the litigation; that States do not assert jurisdiction over matters occurring and directed entirely outside their borders; and that any litigation to which a defendant is subject is a direct and foreseeable consequence of its in-state activities.  Courts cannot dispense with this causation requirement because a defendant has wide-ranging contacts with a State.  Only general jurisdiction allows that, and then only where the defendant is at home.

Petitioner’s Br. at 2. This is (or at least should be) an uncontroversial description of specific jurisdiction, and the Petitioner draws from it that specific jurisdiction requires a “causal connection” between the defendant’s forum contacts and the plaintiff’s claims. Id. at 14.

Continue Reading Solicitor General Urges Supreme Court to Reverse California’s Ill-Conceived Version of “Specific Jurisdiction”

This is a follow-up to our post last week on the Missouri Supreme Court’s momentous personal jurisdiction decision in State ex rel. Norfolk Southern Railway Co. v. Dolan, ___ S.W.3d ___, 2017 WL 770977 (Mo. Feb. 28, 2017) (“NSRC”).  We stated last week, and we continue to believe, that NSRC will ultimately kill litigation tourism in Missouri.

However, it won’t be easy.  Nothing ever is against the rich and entrenched litigation industry.

As we would expect, the other side is talking out both sides of its mouth about NSRC.

On one hand, in the ongoing legislative push for a statutory fix to the bizarre and unfair way that courts have interpreted Missouri’s venue and joinder rules (see our post here), those supporting the other side of the “v.” are already claiming that the venue/joinder reform bill (H.B. 460 – which will be on the House floor this week) is no longer necessary; that NSRC supposedly “fixed” everything.

On the other hand, and essentially simultaneously, in the multi-plaintiff mass tort litigation that is the main reason tort reform is so desperately needed, they’re doing the opposite –  trying to get around NSRC by claiming “pendent party” jurisdiction as a result of the very same venue/joinder problems that venue/joinder reform and H.B. 460 is intended to fix.

Talk is cheap.  Watch what they do, not what they say.

They can’t have it both ways. In fact, they can’t have it either way.  The plaintiffs’ first position is garbage, and the second is devoid of legal support.

For the reasons stated in our original post, H.B.460 remains necessary after NSRC.  NSRC established that personal jurisdiction over non-resident corporations by non-resident plaintiffs over injuries not arising in Missouri is unconstitutional under the Due Process clause.  There is no general personal jurisdiction because the defendant is not “at home.”  There is no specific personal jurisdiction because out-of-state injuries to out-of-state plaintiffs are not “related to” a defendant’s Missouri activities.  There is no “consent” merely by registering to do business.

But as good as it was, NSRC was not a mass tort case.  Rather, it was an individual litigation tourist plaintiff suing a single non-resident corporation.  NSRC thus had no occasion to address either the 99-plaintiff misjoined tort complaints that have become the bane of Missouri product liability practice or the 99-defendant complaints that are typical of asbestos (and some other) product liability litigation.  Eliminating those abuses are at the core of H.B. 460, meaning that the reforms proposed in H.B. 460 remain every bit as necessary as before.  As we discussed, the court of appeals in Barron v. Abbott Laboratories, Inc., ___ S.W.3d ___, 2016 WL 6596091, at *13 (Mo. App. Nov. 8, 2016), invited the legislature to correct the venue/joinder rules, and that is exactly what H.B. 460 will do.

Continue Reading More on Missouri – What To Expect and Not To Expect After Norfolk Southern v. Dolan